Congress CP

Counterplan

1nc ndash congress cpText The United States Congress should

Congress can and should overrule ndash avoids the courts disads Friedman 01 Leon Friedman Joseph Kushner Distinguished Professor of Civil Liberties Law at Hofstra ldquoOverruling the Courtrdquo December 19 2001 httpprospectorgarticleoverruling-court ms

One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law But time and time again Congress has shown its dissatisfaction with Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction

The Supreme Court often insists that Congress cannot really overrule its decisions on what a law means The justices interpretation has to be correct since the Constitution gives final say to the highest court in the land But Congress certainly has the power to pass a new or revised law that changes or reverses the meaning or scope of the law as interpreted by the Court and the legislative history of the new law usually states that it was intended to overrule a specific Court decision

Often the reversal is in highly technical areas such as the statute of limitations in securities-fraud cases the jurisdiction of tribal courts on Indian reservations or the power of state courts to order denaturalization of citizens But in the last 20 years a main target of congressional overruling has been the Supreme Courts decisions in the area of civil rights

In 1982 for example Congress amended the Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in Mobile v Bolden a 1980 decision that addressed whether intentional discrimination must be shown before the act could be invoked In 1988 Congress overruled another Supreme Court decision (in the 1984 case Grove City College v Bell) by passing the Civil Rights Restoration Act which broadened the coverage of Title VI of the Civil Rights Act of 1964 The legislative history of that law specifically recited that certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon a number of federal civil rights statutes and that legislative action is necessary to restore the prior consistent and long-standing executive branch interpretations of those laws

And in 1991 Congress passed a broad new Civil Rights Act that specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that severely restricted and limited workers rights under federal antidiscrimination laws Led by Massachusetts Democrat Edward Kennedy in the Senate and New York Republican Hamilton Fish Jr in the House Congress acted to undo those rulings as well as make other changes to federal law that strengthened the weapons available to workers against discrimination Despite partisan contention

Counterplan

1nc ndash congress cpText The United States Congress should

Congress can and should overrule ndash avoids the courts disads Friedman 01 Leon Friedman Joseph Kushner Distinguished Professor of Civil Liberties Law at Hofstra ldquoOverruling the Courtrdquo December 19 2001 httpprospectorgarticleoverruling-court ms

One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law But time and time again Congress has shown its dissatisfaction with Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction

The Supreme Court often insists that Congress cannot really overrule its decisions on what a law means The justices interpretation has to be correct since the Constitution gives final say to the highest court in the land But Congress certainly has the power to pass a new or revised law that changes or reverses the meaning or scope of the law as interpreted by the Court and the legislative history of the new law usually states that it was intended to overrule a specific Court decision

Often the reversal is in highly technical areas such as the statute of limitations in securities-fraud cases the jurisdiction of tribal courts on Indian reservations or the power of state courts to order denaturalization of citizens But in the last 20 years a main target of congressional overruling has been the Supreme Courts decisions in the area of civil rights

In 1982 for example Congress amended the Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in Mobile v Bolden a 1980 decision that addressed whether intentional discrimination must be shown before the act could be invoked In 1988 Congress overruled another Supreme Court decision (in the 1984 case Grove City College v Bell) by passing the Civil Rights Restoration Act which broadened the coverage of Title VI of the Civil Rights Act of 1964 The legislative history of that law specifically recited that certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon a number of federal civil rights statutes and that legislative action is necessary to restore the prior consistent and long-standing executive branch interpretations of those laws

And in 1991 Congress passed a broad new Civil Rights Act that specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that severely restricted and limited workers rights under federal antidiscrimination laws Led by Massachusetts Democrat Edward Kennedy in the Senate and New York Republican Hamilton Fish Jr in the House Congress acted to undo those rulings as well as make other changes to federal law that strengthened the weapons available to workers against discrimination Despite partisan contention

1nc ndash congress cpText The United States Congress should

Congress can and should overrule ndash avoids the courts disads Friedman 01 Leon Friedman Joseph Kushner Distinguished Professor of Civil Liberties Law at Hofstra ldquoOverruling the Courtrdquo December 19 2001 httpprospectorgarticleoverruling-court ms

One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law But time and time again Congress has shown its dissatisfaction with Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction

The Supreme Court often insists that Congress cannot really overrule its decisions on what a law means The justices interpretation has to be correct since the Constitution gives final say to the highest court in the land But Congress certainly has the power to pass a new or revised law that changes or reverses the meaning or scope of the law as interpreted by the Court and the legislative history of the new law usually states that it was intended to overrule a specific Court decision

Often the reversal is in highly technical areas such as the statute of limitations in securities-fraud cases the jurisdiction of tribal courts on Indian reservations or the power of state courts to order denaturalization of citizens But in the last 20 years a main target of congressional overruling has been the Supreme Courts decisions in the area of civil rights

In 1982 for example Congress amended the Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in Mobile v Bolden a 1980 decision that addressed whether intentional discrimination must be shown before the act could be invoked In 1988 Congress overruled another Supreme Court decision (in the 1984 case Grove City College v Bell) by passing the Civil Rights Restoration Act which broadened the coverage of Title VI of the Civil Rights Act of 1964 The legislative history of that law specifically recited that certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon a number of federal civil rights statutes and that legislative action is necessary to restore the prior consistent and long-standing executive branch interpretations of those laws

And in 1991 Congress passed a broad new Civil Rights Act that specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that severely restricted and limited workers rights under federal antidiscrimination laws Led by Massachusetts Democrat Edward Kennedy in the Senate and New York Republican Hamilton Fish Jr in the House Congress acted to undo those rulings as well as make other changes to federal law that strengthened the weapons available to workers against discrimination Despite partisan contention

over the language of certain provisions (which led to last-minute-compromise language) President George Bush the elder supported the changes The new law recited in its preamble that its purpose was to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination

Given the current supreme Courts track record in civil rights cases there can be no doubt that congressional remediation is again necessary In a series of cases over the past two years the Court has been giving narrow readings to various federal civil rights laws And once again an attentive Congress can and should overrule the Courts decisions if the legislators care about fairness in the operation of government and in the workplace

2nc solvency ndash education Congress has a duty to protect educationLiu 06 Goodwin Liu Assistant Professor of Law at UC Berkeley Education Equality and National Citizenship The Yale Law Journal pg 399-404 httptopedsvefoundationorgwp-contentuploads201108Adequacy-14thAmend-Liu080111pdf ms

As the varying approaches of the early federal aid bills demonstrate the national citizenship guarantee does not entail a singular mode of legislative enforcement Instead of being compelled to adopt a specific policy or program a conscientious legislator seeking to enforce the citizenship guarantee would like Blair and his colleagues pursue a stepwise inquiry First what does equal citizenship mean in contemporary American society What are its political civil social and economic attributes Second what are the educational prerequisites for achieving those attributes What constitutes an adequate education for equal citizenship in the national community Third to what extent are states currently willing and able to provide an adequate education Where and how do they fall short Finally what federal measures are needed to ensure that all children have adequate educational opportunity for equal citizenship What policies best accord equal respect to every child consistent with the guarantee of full and equal national citizenship

Although Congress is unlikely to achieve consensus on these complex issues its duty to enact ldquoappropriate legislationrdquo under Section 5 is best understood as a duty of legislative rationality in construing the Fourteenth Amendmentrsquos substantive guarantees and in choosing the means to effectuate those guarantees By legislative rationality I mean something more than what is required under the judicial doctrine of rational basis review whose undemanding standard serves not as a genuine test of rationality but as a ldquoparadigm of judicial restraintrdquo336 In addressing the questions above Congress must pursue a deliberative inquiry (through the usual devices of hearings reports and public debate) into the meaning of national citizenship and its educational prerequisites and it must take steps reasonably calculated to ameliorate conditions that deny children adequate opportunity to achieve those prerequisites

Importantly a legislative commitment to educational adequacy would give priority to the most glaring educational needs over the workaday politics of budget wrangling and special interest accommodation If educational adequacy for equal citizenship has constitutional stature then legislative enactment of its essential substance must reflect something more than pedestrian political bargaining This idea is analogous to notions of legislative duty that state courts have inferred from state constitutions in educational adequacy cases

When school systems have been judged inadequate courts have faulted state legislatures for fashioning educational policy based on political or budgetary compromises rather than educationally relevant factors337 Without prescribing specific remedies the cases have held that state legislatures are constitutionally obligated to develop policy based on rational empirically supported judgments of what constitutes an adequate education and what reforms are necessary to provide it338 The Fourteenth Amendment demands no less of Congress

The real bite of the legislative duty I posit here is perhaps best revealed by the shortcomings of current federal education policy For all that the No Child Left Behind Act has done to enlarge the federal role nothing in the Act establishes a common set of educational expectations for meaningful national citizenship NCLB purports to ldquoensure that all children have a fair equal and significant opportunity to obtain a high-quality educationrdquo339 But the operative provisions of the statutemdashin particular its testing and accountability requirementsmdashaddress student ldquoproficiency on challenging state academic achievement standards and state academic assessmentsrdquo340 Although schools must make annual progress toward bringing all students to a ldquoproficient level of academic achievementrdquo341 each state has virtually unfettered discretion to define and revise the standards for measuring proficiency342 At most NCLB requires schools to teach math science and language arts but it sets no content

2nc solvency ndash education Congress has a duty to protect educationLiu 06 Goodwin Liu Assistant Professor of Law at UC Berkeley Education Equality and National Citizenship The Yale Law Journal pg 399-404 httptopedsvefoundationorgwp-contentuploads201108Adequacy-14thAmend-Liu080111pdf ms

As the varying approaches of the early federal aid bills demonstrate the national citizenship guarantee does not entail a singular mode of legislative enforcement Instead of being compelled to adopt a specific policy or program a conscientious legislator seeking to enforce the citizenship guarantee would like Blair and his colleagues pursue a stepwise inquiry First what does equal citizenship mean in contemporary American society What are its political civil social and economic attributes Second what are the educational prerequisites for achieving those attributes What constitutes an adequate education for equal citizenship in the national community Third to what extent are states currently willing and able to provide an adequate education Where and how do they fall short Finally what federal measures are needed to ensure that all children have adequate educational opportunity for equal citizenship What policies best accord equal respect to every child consistent with the guarantee of full and equal national citizenship

Although Congress is unlikely to achieve consensus on these complex issues its duty to enact ldquoappropriate legislationrdquo under Section 5 is best understood as a duty of legislative rationality in construing the Fourteenth Amendmentrsquos substantive guarantees and in choosing the means to effectuate those guarantees By legislative rationality I mean something more than what is required under the judicial doctrine of rational basis review whose undemanding standard serves not as a genuine test of rationality but as a ldquoparadigm of judicial restraintrdquo336 In addressing the questions above Congress must pursue a deliberative inquiry (through the usual devices of hearings reports and public debate) into the meaning of national citizenship and its educational prerequisites and it must take steps reasonably calculated to ameliorate conditions that deny children adequate opportunity to achieve those prerequisites

Importantly a legislative commitment to educational adequacy would give priority to the most glaring educational needs over the workaday politics of budget wrangling and special interest accommodation If educational adequacy for equal citizenship has constitutional stature then legislative enactment of its essential substance must reflect something more than pedestrian political bargaining This idea is analogous to notions of legislative duty that state courts have inferred from state constitutions in educational adequacy cases

When school systems have been judged inadequate courts have faulted state legislatures for fashioning educational policy based on political or budgetary compromises rather than educationally relevant factors337 Without prescribing specific remedies the cases have held that state legislatures are constitutionally obligated to develop policy based on rational empirically supported judgments of what constitutes an adequate education and what reforms are necessary to provide it338 The Fourteenth Amendment demands no less of Congress

The real bite of the legislative duty I posit here is perhaps best revealed by the shortcomings of current federal education policy For all that the No Child Left Behind Act has done to enlarge the federal role nothing in the Act establishes a common set of educational expectations for meaningful national citizenship NCLB purports to ldquoensure that all children have a fair equal and significant opportunity to obtain a high-quality educationrdquo339 But the operative provisions of the statutemdashin particular its testing and accountability requirementsmdashaddress student ldquoproficiency on challenging state academic achievement standards and state academic assessmentsrdquo340 Although schools must make annual progress toward bringing all students to a ldquoproficient level of academic achievementrdquo341 each state has virtually unfettered discretion to define and revise the standards for measuring proficiency342 At most NCLB requires schools to teach math science and language arts but it sets no content

or performance standards in these subjects The result has been a patchwork of state standards and assessments that vary considerably in content ambition and rigor343 In some states schools and students are held to the highest competitive standards in others they are consigned to mediocrity or worse

Similarly the federal role in education funding is unguided by any determination of what resources are needed to ensure educational adequacy for equal citizenship The single largest program of federal education aidmdashTitle I of the Elementary and Secondary Education Act of 1965mdashawards funding to each state in proportion to its share of poor children and to its existing level of per-pupil spending344 Thus wealthy high-spending states receive more Title I aid per eligible child than poor low-spending states In 2001 for example Massachusetts had 33 fewer poor children than Alabama but received 36 more Title I aid New Jersey had 17 fewer poor children than Arizona but received 52 more aid345 The net effect of Title I is to reinforce not reduce the wide disparities in educational resources that exist across states with no formal or informal determination by Congress that the lowest-spending states provide a floor of adequacy In sum our current policies treat the nationrsquos schoolchildren not as ldquocitizens of the United Statesrdquo but foremost as ldquocitizens of the state wherein they residerdquomdashan improper inversion of the Fourteenth Amendment guarantee

In securing national citizenship the federal government must serve not merely as a facilitator of educational choices that reflect each statersquos ambition and capacity but as the ultimate guarantor of opportunity for every child to achieve equal standing and full participation in the national community In the abstract this duty could be satisfied by an array of policy alternatives At one end of the spectrum are highly centralized approaches such as the nationalized school systems in France and Japan but no proposal of this sort has been seriously entertained in the United States since the Hoar bill died in 1871346 At the other end of the spectrum are highly decentralized approaches such as the national voucher systems in Chile Colombia and Sweden347 A national voucher plan providing genuinely equal access to schools that are held accountable for meeting common educational standards could be a powerful way of treating all children with equal regard348 although the prospect of bringing a well-regulated voucher system to national scale in the United States seems remote349

Congress has a duty Liu 06 Goodwin Liu Assistant Professor of Law at UC Berkeley Education Equality and National Citizenship The Yale Law Journal pg 363-66 httptopedsvefoundationorgwp-contentuploads201108Adequacy-14thAmend-Liu080111pdf ms

If the Fourteenth Amendment empowers Congress to legislate directly to enforce the substantive guarantees of national citizenship does it also obligate Congress to do so On its face the text says ldquoCongress shall have power to enforcerdquo and makes no mention of duty and there is obviously a semantic difference between power and obligation One could readily treat the exercise of Section 5 power as a matter of public policy without also treating it as a matter of constitutional duty At the same time the concepts of power and dutymdashand authority and responsibilitymdashdo not always travel separately When it comes to Section 5 there is more than a whiff of duty implicit in the grant of congressional enforcement power This claim draws support from the concept of law enforcement at the heart of Section 5 from institutional differences between Congress and the courts with respect to the enforcement task and from the historical understanding of Section 5 as a font of both power and affirmative duty

To begin with Section 5 differs from other fonts of congressional power in that it does not merely name a substantive field of permissible regulation such as interstate commerce copyright or naturalization It is a peculiar type of legislative authorizationmdashan authorization to enforce law specifically the guarantees of Section 1 In other contexts we recognize law enforcement as a form of authority that combines elements of discretion and duty Police officers for example have wide discretion in law enforcement but the discretion is coupled with a legal duty to do what is prudent and reasonable to protect the public at large140 Federal courts too have discretion (more discretion than is commonly realized) in deciding whether to exercise law enforcement authority conferred by

statutory or constitutional grants of jurisdiction141 But the discretion exists against a presumption that courts must exercise the jurisdiction they are given as ldquo[a]uthority to act necessarily implies a correlative responsibilityrdquo142 The same reasoning seems applicable to Congressrsquos enforcement authority under Section 5 Why would the Fourteenth Amendment guarantee national citizenship and its privileges and immunities and then vest Congress with power to enforce the guaranteemdashyet imply no correlative duty of enforcement The absence of duty would suggest implausibly that congressional enforcement of Section 1rsquos mandates is simply discretionary or optional to the constitutional scheme143

One might argue that congressional enforcement is designed to serve only as a means of facilitating judicial enforcement and is thus nonessential or at least secondary in securing the Fourteenth Amendmentrsquos guarantees144 But by assuming the primacy of judicial enforcement the argument ignores the distinct institutional purposes constraints and capacities that the courts and Congress bring to the task of elaborating and enforcing constitutional norms145 These institutional differences provide further reason to infer that Fourteenth Amendment enforcement is a matter of legislative as well as judicial duty Indeed the obligatory character of the legislative role is underscored by the phenomenon of judicial underenforcement Because Section 1 norms remain ldquolegally valid to their full conceptual limitsrdquo when judicially underenforced legislators have a ldquolegal obligationrdquo to ldquofashion their own conceptions of these norms and measure their conduct by reference to these conceptionsrdquo146 Thus the Supreme Court has acknowledged ldquoboth congressional resourcefulness and congressional responsibility for implementing the [Fourteenth] Amendmentrdquo to address more than what ldquothe judicial branch [is] prepared to adjudge unconstitutionalrdquo147

Moreover the dual character of Section 5 as a font of power and affirmative duty accords with historical understandings Although the Framers revised Section 1 so that its basic commands would be self-executing and susceptible to judicial enforcement ldquotheir primary faith was in Congressrdquo148mdashan unsurprising choice given their distrust of the Supreme Court after Dred Scott The clearest statement of this faith appears in a May 1866 speech by Senator Jacob Howard of Michigan introducing the Fourteenth Amendment as it emerged from the Joint Committee on Reconstruction Describing Section 5 Senator Howard said

It gives to Congress power to enforce by appropriate legislation all the provisions of this article of amendment It casts upon Congress the responsibility of seeing to it for the future that all the sections of the amendment are carried out in good faith I look upon this clause as indispensable for the reason that it thus imposes upon Congress this power and this duty149

Congressrsquo role in education is expandingDeBray and Blankenship 13 Elizabeth DeBray Professor Department of Lifelong Education Administration and Policy at University of Georgia amp Ann Elizabeth Blankenship Assistant Professor Educational Administration at University of Georgia Associate Editor-in-Chief on the Education Law and Policy Review ldquoFuture Policy Directions for Congress in Ensuring Equality of Opportunity Toward Improved Incentives Targeting and Enforcementrdquo Peabody Journal of Education Volume 88 2013 - Issue 1 httpdxdoiorg1010800161956X2013752627 ms

Historically Congress has played an important role in assuring access to equality of educational opportunity for some groups Protections of the rights of students with disabilities Pell Grants to help students from low-income families attend college enforcement of the Civil Rights Act through the ESEA and the benefits of categorical programs like Head Start and Title I are all key examples of this role As the federal courtsrsquo role in enforcing racial desegregation in elementary and secondary schools has been diminished Congresss power over educational policy has expanded especially with the bipartisan convergence in 2001 on federally driven school-based accountability Title I is far more connected now to incentives

supporting ldquoturnaroundrdquo models and charter schools a transition that the American Recovery and Reinvestment Act hastened with its rapid infusion of dollars

New sociological and economic evidence about opportunity only strengthens our view that the discourse in Congress about equality of educational opportunity has become far too narrow To truly narrow the achievement gap all social policies should be considered health housing affordable day care and job training to break the poverty cycle By making current categorical programs more streamlined and equitable enforcing civil

rights laws and ldquoincentivizing opportunityrdquomdashdeveloping policies that encourage states and districts to rethink more structural aspects of student assignment policies to support integration as well as making some needed alterations in NCLB accountabilitymdashCongress can more effectively move forward in its role as guardian of disadvantaged students For such reasoned deliberation to occur in Congress however means that the current period of exigency related to budgetary instability as well as extreme partisanship over the federal role in education must abate

2nc solvency ndash 14 th amendment Congress must rule ndash 14th Amendment provesLiu 06 Goodwin Liu Assistant Professor of Law at UC Berkeley Education Equality and National Citizenship The Yale Law Journal pg 333-34 httptopedsvefoundationorgwp-contentuploads201108Adequacy-14thAmend-Liu080111pdf ms

This Article argues that the Fourteenth Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation But instead of parsing the Equal Protection Clause the perspective I aim to develop focuses on the Fourteenth Amendmentrsquos opening words the Citizenship Clause12 Before the Fourteenth Amendment mandates equal protection of the laws it guarantees national citizenship This guarantee is affirmatively declared it is not merely protected against state abridgment Moreover the guarantee does more than designate a legal status13 Together with Section 514 it obligates the national government to secure the full membership effective participation and equal dignity of all citizens in the national community This obligation I argue encompasses a legislative duty to ensure that all children have adequate educational opportunity for equal citizenship

2nc solvency ndash 14 th amendment Congress must rule ndash 14th Amendment provesLiu 06 Goodwin Liu Assistant Professor of Law at UC Berkeley Education Equality and National Citizenship The Yale Law Journal pg 333-34 httptopedsvefoundationorgwp-contentuploads201108Adequacy-14thAmend-Liu080111pdf ms

This Article argues that the Fourteenth Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity throughout the nation But instead of parsing the Equal Protection Clause the perspective I aim to develop focuses on the Fourteenth Amendmentrsquos opening words the Citizenship Clause12 Before the Fourteenth Amendment mandates equal protection of the laws it guarantees national citizenship This guarantee is affirmatively declared it is not merely protected against state abridgment Moreover the guarantee does more than designate a legal status13 Together with Section 514 it obligates the national government to secure the full membership effective participation and equal dignity of all citizens in the national community This obligation I argue encompasses a legislative duty to ensure that all children have adequate educational opportunity for equal citizenship

2nc solvency ndash citizenship Congress can rule under the Citizenship ClauseLiu 06 Goodwin Liu Assistant Professor of Law at UC Berkeley Education Equality and National Citizenship The Yale Law Journal pg 358-61 httptopedsvefoundationorgwp-contentuploads201108Adequacy-14thAmend-Liu080111pdf ms

Moreover by virtue of its affirmative character the substantive protections of the Citizenship Clause are guaranteed not merely against state abridgment but as a matter of positive right Accordingly Congressrsquos Section 5 power is ldquonot restricted to the enforcement of prohibitions upon State laws or State actionrdquo and instead may be used to enact ldquolegislation of a primary direct characterrdquo to secure citizenship rights110

This reading of the Citizenship Clause and Section 5mdashauthorizing direct federal enforcement of the citizenship guaranteemdashparallels the well-established interpretation of Congressrsquos power to enforce Section 1 of the Thirteenth Amendment The latter ldquois not a mere prohibition of State laws establishing or upholding slavery but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United Statesrdquo111 As the Court explained in upholding a federal antipeonage law the Thirteenth Amendment ldquodenounces a status or condition irrespective of the manner or authority by which it is createdrdquo112 Conversely the Citizenship Clause guarantees a status or condition irrespective of the manner or authority by which its realization is impeded In both instances Congressrsquos enforcement power is correspondingly broad Just as the Thirteenth Amendment authorizes primary and direct federal legislation to secure ldquothose fundamental rights which are the essence of civil freedomrdquo113 the Fourteenth Amendment authorizes similar legislation to secure rights ldquofundamental in American citizenshiprdquo114

Objections to this expansive view of congressional authority largely rest on inferences from the text and history of the Fourteenth Amendment that do not withstand close scrutiny Textually it is said that Section 1 expressly protects ldquothe privileges or immunities of citizens of the United Statesrdquo from state abridgment and nothing more115 Thus Congress has no obligation or authority under Section 5 to secure the rights of national citizenship except against state invasion116 This inference is bolstered the argument goes by the Fourteenth Amendmentrsquos legislative historymdashin particular the decision by the Joint Committee on Reconstruction to discard a February 1866 draft amendment in favor of the language that was ultimately ratified The February 1866 draft read

The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States and to all persons in the several States equal protection in the rights of life liberty and property117

This language assigned Congress the role of securing substantive rights of citizenship regardless of state action According to the Supreme Court in City of Boerne v Flores the February 1866 proposal ldquoencountered immediate oppositionrdquo on the ground that it ldquowould give Congress a power to intrude into traditional areas of state responsibilityrdquo118 After the House voted to postpone consideration of the proposalmdashan action the Court described as ldquomarking [its] defeatrdquo119mdashthe Joint Committee reported a new draft on April 30 1866 that began with what is now the second sentence of Section 1 and that included Section 5120 The revision was approved according to the Boerne Court because it made ldquoCongressrsquo power no longer plenary but remedialrdquo and ldquodid not raise the concerns expressed earlier regarding broad congressional power to prescribe uniform national laws with respect to life liberty and propertyrdquo121

However this reading of the Fourteenth Amendment has several weaknesses First the idea that the Privileges or Immunities Clause limits rather than augments the scope of protection for national citizenship rights cannot be squared with prior understandings of the federal governmentrsquos authority and responsibility in relation to such rights Although rights of national citizenship were not clearly defined before the Civil War the notion had

unmistakable resonance in one area the preservation of slavery In upholding the Fugitive Slave Act of 1793 the Court in Prigg v Pennsylvania determined that Congress had power under the Fugitive Slave Clause to enforce by primary legislation ldquoa positive unqualified right on the part of the owner of the slaverdquo122 The Court described the right as ldquouniform in remedy and operation throughout the whole Union however many states [the owner] may pass with his fugitive slave in his possessionrdquo123 The right belonged to the slave owner as a national citizen as such it implied ldquothe power and duty of the national governmentrdquo to protect it124 Moreover in Dred Scott the Court made clear that this right was secure against federal abridgment125

Against this legal backdrop it is incongruous to read the Fourteenth Amendment as remitting the privileges or immunities of national citizenship to state control To do so as Justice Harlan explained would be to hold that ldquothe rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of the masterrdquo126 The more sensible view is that the Privileges or Immunities Clause read together with the Citizenship Clause does not circumscribe but rather ldquoexpands the protection that American citizens would otherwise have the right to expectrdquo127 In other words

the prohibition upon State laws in hostility to rights belonging to citizens of the United States was intended only as an express limitation on the powers of the States and was not intended to diminish in the slightest degree the authority which the nation has always exercised of protecting by means of its own direct legislation rights created or secured by the Constitution128

2nc solvency ndash constitution Congress solves best ndash has constitutional significance Liu 08 Goodwin Liu Assistant Professor of Law at UC Berkely Rethinking Constitutional Welfare Rights Stanford Law Review Vol 61 No 2 pg 204-206 November 2008 httpwwwjstororgstable40379685 ms

Once a subject of intense interest in the courts and legal academy the idea that our Constitution guarantees affirmative rights to social and economic welfare has for some time been out of fashion In 2001 William Forbath observed that like Banquos ghost the idea of constitutional welfare rights will not die down but it is not exactly alive either No fresh or even sustained arguments on its behalf have appeared for over a decade only nods and glancing acknowledgments1 As a doctrinal matter the prevailing view is issues of poverty and distributive justice should be resolved through legislative policymaking rather than constitutional adjudication2 Some commentators (myself included) have argued that such policymaking may yet have constitutional significance if the existence and binding force of constitutional welfare rights are distinguished from the question of judicial enforcement3 But it remains a fact of our legal culture that what counts as a constitutional right is deeply shaped by the courts and for a generation our courts have steered clear of social or economic rights4 even as severe deprivation and inequality continue to pose serious challenges to our commitment to human dignity and equal citizenship

Things were not always so During the 1960s and 1970s welfare rights held a prominent place on the public agenda not only in the legislative process but also in mainstream constitutional discourse5 In the Supreme Court the subject percolated long enough in equal protection and due process doctrine for us to see justiciable welfare rights as more than an idle aspiration and the resulting precedents remain on the books6 Moreover as Cass Sunstein has argued the judicial retreat from welfare rights was a near thing occurring in the wake of President Nixons narrow electoral victory in 1968 and his improbable opportunity to appoint four new Justices to the Court between 1969 and 19727 The four Nixon appointees joined Justice Stewart to form a bare majority in San Antonio Independent School District v Rodriguez the pivotal 1973 case upholding unequal school funding based on differences in local wealth8 And yet for all oiacute Rodriguez s skepticism toward judicial recognition of social and economic rights the Court felt compelled to reserve the question still dangling today whether the Constitution guarantees a minimally adequate level of educational opportunity9

2nc solvency ndash constitution Congress solves best ndash has constitutional significance Liu 08 Goodwin Liu Assistant Professor of Law at UC Berkely Rethinking Constitutional Welfare Rights Stanford Law Review Vol 61 No 2 pg 204-206 November 2008 httpwwwjstororgstable40379685 ms

Once a subject of intense interest in the courts and legal academy the idea that our Constitution guarantees affirmative rights to social and economic welfare has for some time been out of fashion In 2001 William Forbath observed that like Banquos ghost the idea of constitutional welfare rights will not die down but it is not exactly alive either No fresh or even sustained arguments on its behalf have appeared for over a decade only nods and glancing acknowledgments1 As a doctrinal matter the prevailing view is issues of poverty and distributive justice should be resolved through legislative policymaking rather than constitutional adjudication2 Some commentators (myself included) have argued that such policymaking may yet have constitutional significance if the existence and binding force of constitutional welfare rights are distinguished from the question of judicial enforcement3 But it remains a fact of our legal culture that what counts as a constitutional right is deeply shaped by the courts and for a generation our courts have steered clear of social or economic rights4 even as severe deprivation and inequality continue to pose serious challenges to our commitment to human dignity and equal citizenship

Things were not always so During the 1960s and 1970s welfare rights held a prominent place on the public agenda not only in the legislative process but also in mainstream constitutional discourse5 In the Supreme Court the subject percolated long enough in equal protection and due process doctrine for us to see justiciable welfare rights as more than an idle aspiration and the resulting precedents remain on the books6 Moreover as Cass Sunstein has argued the judicial retreat from welfare rights was a near thing occurring in the wake of President Nixons narrow electoral victory in 1968 and his improbable opportunity to appoint four new Justices to the Court between 1969 and 19727 The four Nixon appointees joined Justice Stewart to form a bare majority in San Antonio Independent School District v Rodriguez the pivotal 1973 case upholding unequal school funding based on differences in local wealth8 And yet for all oiacute Rodriguez s skepticism toward judicial recognition of social and economic rights the Court felt compelled to reserve the question still dangling today whether the Constitution guarantees a minimally adequate level of educational opportunity9

2nc solvency ndash international law International law ndash possible link into convention on the rights of the childRooney 06 Heather Rooney JD Drake University Law School ldquoPARLAYING PRISONER PROTECTIONS A LOOK AT THE INTERNATIONAL LAW AND SUPREME COURT DECISIONS THAT SHOULD BE GOVERNING OUR TREATMENT OF GUANTANAMO DETAINEESrdquo 54 Drake L Rev 679 Spring 06 lexis ms

Instead this Note will provide background on the United States position regarding the status of detainees under the Geneva Conventions and will also explain what protections detainees would have been entitled to if the Geneva Conventions had been applied Next this Note will discuss other sources of international law that may provide Guantanamo detainees with protection Customary international law including the Universal Declaration of Human Rights and Common Article 3 of the Geneva Conventions the International Covenant on Civil and Political Rights and the UN Convention Against Torture all confer certain rights on detainees despite the fact that they are not instruments which expressly govern armed conflict n5 Whether the United States is abiding by these authorities is an important issue the discussion of which will highlight the fact that the United States is currently grappling with how it should approach international law With its recent decisions concerning Guantanamo detainees the United States Supreme Court shed some light on what the judiciary expects as far as compliance with international law [682] standards however a consensus has by no means been reached In order for the international legal system as we know it to continue and for the democratic States n6 duty as protector of human rights to be upheld the United States must make a pivotal choice Congress needs to definitively set out definite guidelines that govern how and when this country will abide by international law n7 The United States must quickly decide how we are legally going to deal with terrorists

2nc solvency ndash overrule Congress can overruleFriedman 01 Leon Friedman Joseph Kushner Distinguished Professor of Civil Liberties Law at Hofstra ldquoOverruling the Courtrdquo December 19 2001 httpprospectorgarticleoverruling-court ms

One of the myths of our political system is that the Supreme Court has the last word on the scope and meaning of federal law But time and time again Congress has shown its dissatisfaction with Supreme Court interpretations of laws it passes--by amending or re-enacting the legislation to clarify its original intent and overrule a contrary Court construction

The Supreme Court often insists that Congress cannot really overrule its decisions on what a law means The justices interpretation has to be correct since the Constitution gives final say to the highest court in the land But Congress certainly has the power to pass a new or revised law that changes or reverses the meaning or scope of the law as interpreted by the Court and the legislative history of the new law usually states that it was intended to overrule a specific Court decision

Often the reversal is in highly technical areas such as the statute of limitations in securities-fraud cases the jurisdiction of tribal courts on Indian reservations or the power of state courts to order denaturalization of citizens But in the last 20 years a main target of congressional overruling has been the Supreme Courts decisions in the area of civil rights

In 1982 for example Congress amended the Voting Rights Act of 1965 to overrule a narrow Supreme Court holding in Mobile v Bolden a 1980 decision that addressed whether intentional discrimination must be shown before the act could be invoked In 1988 Congress overruled another Supreme Court decision (in the 1984 case Grove City College v Bell) by passing the Civil Rights Restoration Act which broadened the coverage of Title VI of the Civil Rights Act of 1964 The legislative history of that law specifically recited that certain aspects of recent decisions and opinions of the Supreme Court have unduly narrowed or cast doubt upon a number of federal civil rights statutes and that legislative action is necessary to restore the prior consistent and long-standing executive branch interpretations of those laws

And in 1991 Congress passed a broad new Civil Rights Act that specifically reversed no fewer than five Supreme Court cases decided in 1989--decisions that severely restricted and limited workers rights under federal antidiscrimination laws Led by Massachusetts Democrat Edward Kennedy in the Senate and New York Republican Hamilton Fish Jr in the House Congress acted to undo those rulings as well as make other changes to federal law that strengthened the weapons available to workers against discrimination Despite partisan contention over the language of certain provisions (which led to last-minute-compromise language) President George Bush the elder supported the changes The new law

recited in its preamble that its purpose was to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination

Given the current supreme Courts track record in civil rights cases there can be no doubt that congressional remediation is again necessary In a series of cases over the past two years the Court has been giving narrow readings to various federal civil rights laws And once again an attentive Congress can and should overrule the Courts decisions if the legislators care about fairness in the operation of government and in the workplace

2nc solvency ndash generic Congress handles many issues better than courtsFisher 06 Louis Fisher PhD (1967) and MA (1966) in political science New School for Social Research Scholar in Residence Constitution Project Previously Senior Specialist in Separation of Powers at Congressional Research Service (1970 to 2006) and Specialist in Constitutional Law with the Law Library Library of Congress (2006 to August 27 2010) Saint Louis University Law Journal

For the past four decades I have made it my practice whenever possible to enter into a dialogue with political science and law professors who believe that the US Supreme Court is and should be the final voice on constitutional matters As my examples mount up particularly on the many issues that are handled almost exclusively by the executive and legislative branches the professors will reluctantly concede that disputes over separation of powers and federalism are indeed profoundly influenced by the elected branches and in some cases decisively so But here they firmly draw a line Congress and the President may have the dominant say on structural issues between the two branches or between the national government and the states but surely only the courts have the ultimate authority to decide matters of individual rights It stands to reason they say that the majoritarian process followed by the political branches can never be trusted to protect minority rights

I then explain why even this fallback position cannot survive scrutiny In numerous areas the political branches do a much better job of protecting individual rights and minority rights than the courts Eyebrows dance in disbelief at this wild claim but if my friend or someone who had been my friend will hear me out I will identify many situations over the past two [638] centuries where the regular political process has done exceedingly well in protecting individual rights often better than the courts and federal and state judges are often quite happy to see a vexatious matter resolved by other parties Citizens and lawyers should not look automatically and unflinchingly to the courts for final answers to constitutional controversies

Policymaking should be left to Congress ndash Roe v Wade provesBlack 12 Eric Black writes Eric Black Ink for MinnPost analyzing politics and government former reporter for the Star Tribune Erics latest award is from the Society of Professional Journalists the national Sigma Delta Chi Award for online column writing ldquoHow the Supreme Court has come to play a policymaking roleldquo MinnPost 112012 httpswwwminnpostcomeric-black-ink201211how-supreme-court-has-come-play-policymaking-role msTwo landmark decisions that are part of our everyday politics illustrate the lack of real judicial modesty and demonstrate how the court has come to play a policymaking role that is supposed to be reserved for elected officials The cases are Roe v Wade and Citizens United v Federal Election Commission

Roe v Wade

2nc solvency ndash generic Congress handles many issues better than courtsFisher 06 Louis Fisher PhD (1967) and MA (1966) in political science New School for Social Research Scholar in Residence Constitution Project Previously Senior Specialist in Separation of Powers at Congressional Research Service (1970 to 2006) and Specialist in Constitutional Law with the Law Library Library of Congress (2006 to August 27 2010) Saint Louis University Law Journal

For the past four decades I have made it my practice whenever possible to enter into a dialogue with political science and law professors who believe that the US Supreme Court is and should be the final voice on constitutional matters As my examples mount up particularly on the many issues that are handled almost exclusively by the executive and legislative branches the professors will reluctantly concede that disputes over separation of powers and federalism are indeed profoundly influenced by the elected branches and in some cases decisively so But here they firmly draw a line Congress and the President may have the dominant say on structural issues between the two branches or between the national government and the states but surely only the courts have the ultimate authority to decide matters of individual rights It stands to reason they say that the majoritarian process followed by the political branches can never be trusted to protect minority rights

I then explain why even this fallback position cannot survive scrutiny In numerous areas the political branches do a much better job of protecting individual rights and minority rights than the courts Eyebrows dance in disbelief at this wild claim but if my friend or someone who had been my friend will hear me out I will identify many situations over the past two [638] centuries where the regular political process has done exceedingly well in protecting individual rights often better than the courts and federal and state judges are often quite happy to see a vexatious matter resolved by other parties Citizens and lawyers should not look automatically and unflinchingly to the courts for final answers to constitutional controversies

Policymaking should be left to Congress ndash Roe v Wade provesBlack 12 Eric Black writes Eric Black Ink for MinnPost analyzing politics and government former reporter for the Star Tribune Erics latest award is from the Society of Professional Journalists the national Sigma Delta Chi Award for online column writing ldquoHow the Supreme Court has come to play a policymaking roleldquo MinnPost 112012 httpswwwminnpostcomeric-black-ink201211how-supreme-court-has-come-play-policymaking-role msTwo landmark decisions that are part of our everyday politics illustrate the lack of real judicial modesty and demonstrate how the court has come to play a policymaking role that is supposed to be reserved for elected officials The cases are Roe v Wade and Citizens United v Federal Election Commission

Roe v Wade

In Roe the court discovered a constitutional right to abortion (even though the word ldquoabortionrdquo certainly doesnrsquot appear in the Constitution) The majority found this right to be a part of a general right to privacy guaranteed by the Constitution (even though the word ldquoprivacyrdquo also appears nowhere in the Constitution) There are some rights guaranteed by the Constitution that have something to do with privacy like the Fourth Amendment right to be free in your home from warrantless searches by the authorities And the court had previously discovered other unenumerated privacy- (and contraception-) related rights that a majority of justices ruled were guaranteed by the Constitution

I recognize that most liberals and many people reading this article revere the Roe decision which is also part of the point

Before Roe the abortion question was left to the states Some allowed the procedure most banned it To think that women should have a right to choose for themselves whether to have an abortion is an utterly defensible belief and one I share To think that the authors andor ratifiers of the Bill of Rights had abortion in mind when they described the basic rights that must be beyond encroachment by the government would be ludicrous In fact no one seriously asserts that

If such a policy is to become the law of the land or of individual states it would certainly be best if it came from the elected branches which are assigned the task of making laws and policies

In Roe the majority not only amended the Bill of Rights to insert a new right that the original authors hadnrsquot intended but went further into what one might call a legislative mode by breaking a pregnancy into trimesters and specifying different levels of a womanrsquos discretion over the abortion choice during each trimester

To strict constructionists and especially to abortion opponents Roe became and has remained the leading symbol of ldquolegislating from the benchrdquo It was a statement from the courtrsquos majority that they needed little basis in the Constitution to create rights that they felt should be guaranteed In an earlier 1958 ruling the court declared that the meaning of language in the Constitution was not frozen in time according to what it meant when it was written but ldquomust draw its meaning from the evolving standards of decency that mark the progress of a maturing societyrdquo

The Roe ruling has been central to public perceptions of the Supreme Court ever since For example Roe remains the sub rosa litmus test around all appointments to the court which is the subject of the next installment of this series For purposes of this installment suffice it to say that in Roe the court appointed itself the key body in charge of legislating and regulating in the area of abortion

2nc solvency ndash precedent Congress sets statutory stare decisisBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

The Supreme Court has long given its cases interpreting statutes special protection from overruling The Court is relatively willing to overrule its constitutional precedents because in that context the Court reasons that correction through legislative action is practically impossible But the Supreme Court insists that a party advocating the abandonment of a statutory precedent bears a greater burden In that context the Court claims that stare decisis has special force 2 It gains this special force from the principle of legislative supremacy-the belief that Congress rather than the Supreme Court bears primary responsibility for shaping policy through statutory law The Supreme Courts cases and the literature discussing them offer two explanations for how the Supreme Courts statutory stare decisis practice honors the supremacy of the legislature One line of thought interprets Congresss silence following the Supreme Courts interpretation of a statute as approval of that interpretation If Congress had disagreed with the Supreme Courts interpretation the argument goes Congress would have amended the statute to reflect its disagreement By failing to amend the statute Congress signals its acquiescence in the Supreme Courts approach According to this way of thinking the Courts practice of giving its statutory precedent particularly forceful effect reflects its reluctance to abandon statutory interpretations that Congress through its silence has effectively approved Statutory stare decisis in other words reflects deference to Congresss wishes A second line of thought eschews the notion that congressional silence following a Supreme Court statutory interpretation reflects acquiescence in it but still advocates heightened stare decisis in statutory cases as a means of honoring legislative supremacy Those who subscribe to this second school of thought emphasize that in our Constitutions separation of powers policymaking is an aspect of legislative rather than judicial power Because statutory interpretation inevitably involves policymaking it risks infringing upon legislative power and consequently the Supreme Court should approach the task with caution The Court cannot avoid interpreting a statute-and the attendant policymaking-the first time a statutory ambiguity is presented to it Thereafter however the Supreme Courts refusal to revisit a statutory interpretation is a means of shifting policymaking responsibility back to Congress where it belongs Were we to alter our statutory interpretations from case to case the Supreme Court explains Congress would have less reason to exercise its responsibility to correct statutes that are thought to be unwise or unfair 3 In other words super-strong statutory stare decisis lets Congress know that changes in statutory interpretations ought to come from it4 As a result the argument goes Congress (and other interested parties) will be more likely to use the democratic rather than the judicial process to resolve the policy questions that lie at the heart of interpretive disputes

The Supreme Court gives heightened weight to statutory precedent ndash baseball provesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

The Supreme Court has accorded heightened deference to its statutory precedent for roughly a century5 The classic illustration of this heightened deference is the line of Supreme Court cases addressing the question whether the Sherman Act which renders illegal every contract in restraint of trade or commerce among the several States 6 applies to organized baseball In 1922 the Supreme Court held in Federal Baseball Club of Baltimore Inc v National League of Professional Baseball Clubs that it did not because the Court considered baseball to be a purely intrastate affair 7 Over the next thirty years both the business of baseball and the Courts understanding of interstate commerce so expanded that the Court almost surely would have applied the Sherman Act to organized baseball if it had considered the question as an original matter 8 Nonetheless in Toolson v New York Yankees Inc decided in 1953 the Court reaffirmed baseballs exemption from federal antitrust law on the ground that the precedent exempting it was statutory 9 The Court insisted that any change in statutory precedent ought to come from Congress and Congress though aware of Federal Baseball had left it undisturbed 10

The Court confronted the baseball exemption again in Flood v Kuhn1 and by this time baseballs exemption had become a downright anomaly Flood reached the Supreme Court in 1972 By then the Court had interpreted the Sherman Act to apply to boxing football and basketball 12 Baseball appeared to be the only organized sport beyond the Sherman Acts reach Nonetheless the Supreme Court again affirmed its original interpretation again on the ground of statutory stare decisis13 Had Federal Baseball and Toolson been constitutional or common law cases the change in case law and circumstances would have justified overruling them14 But these cases interpreted a statute While acknowledging that the baseball exemption was illogical and inconsistent with other case law the Court asserted that statutory precedent deserves particularly strong stare decisis effect and it left the baseball exemption in place15

While Toolson and Flood may represent an anomaly in federal antitrust law they do not represent an anomaly in statutory interpretation Instead these cases illustrate a principle well ingrained in the Supreme Courts jurisprudence Cases interpreting statutes are rarely overruled As the Court often explains Considerations of stare decisis weigh heavily in the area of statutory construction where Congress is free to change this Courts interpretation of its legislation 6 Because statutory precedents are nearly sacrosanct the burden borne by the party advocating abandonment of a precedent is greater where the Court is asked to overrule a point of statutory construction than when the Court is asked to overrule another point of law 17 Indeed the force of the Supreme Courts statutory stare decisis doc- trine is so strong that it prevails over other interpretive principles including otherwise weighty interpretive principles like clear statement rules 18 The Supreme Court

repeatedly asserts that statutory cases are special and call for special application of stare decisis1 9

Deviation from statutory precedent violates the constitution Barret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

First Justice Blacks theory Justice Black is closely associated with the Supreme Courts statutory stare decisis doctrine for he was one of its most vocal advocates 39 He recognized that statutory interpretation inevitably requires the resolution of statutory ambiguity and that the resolution of statutory ambiguity inevitably requires some degree of policymaking 40 He was deeply uncomfortable however with the Supreme Courts undertaking any policymaking role41 He grudgingly acknowledged that when the Supreme Court first interprets a statute the resolution of statutory ambiguity-and the attendant policymaking-is unavoidable in the decision of the case before it42 In subsequent cases however Justice Black insisted that the Supreme Court ought to avoid judicial policymaking by observing statutory stare decisis43 His position in this regard is rather extreme He went so far as to claim that [w]hen the law has been settled by an earlier case then any subsequent reinterpretation of the statute is gratuitous and neither more nor less than an amendment it is no different in effect from a judicial alteration of language that Congress itself placed in the statute 44 Thus Justice Black believed that the Supreme Courts deviation from statutory precedent literally violates the Constitution by usurping legislative power4 5 Adherence to statutory precedent in his view is a way to avoid encroaching on the power of Congress to determine policies and make laws to carry them out 46

2nc solvency ndash rights Congress has the authority to declare fundamental rightsLiu 06 Goodwin Liu Assistant Professor of Law at UC Berkeley Education Equality and National Citizenship The Yale Law Journal pg 358-61 httptopedsvefoundationorgwp-contentuploads201108Adequacy-14thAmend-Liu080111pdf ms

As I discuss below Harlanrsquos exposition of the Fourteenth Amendment helps to frame three important features of the guarantee of national citizenship and Congressrsquos enforcement power First the citizenship guarantee entails substantive rights Second Congress has authority to act directly to enforce the citizenship guarantee it is not limited to deterring or remedying state abridgment Third I argue the grant of enforcement power to Congress implies a corresponding duty of enforcement

1 National Citizenship as a Source of Substantive Rights

In addition to defining the political identity of the American people the citizenship guarantee encompasses substantive rights necessary to make citizenship meaningful and effective As Justice Harlan put it the Citizenship Clause ldquonecessarily importsrdquo rights ldquofundamental in American citizenshiprdquo105 His thesis echoed one of the core concepts animating the Civil Rights Act of 1866 whose declaration of national citizenship was the precursor to the Fourteenth Amendmentrsquos Citizenship Clause106 Senator Lyman Trumbull of Illinois the main author of the 1866 Act explained To be a citizen of the United States carries with it some rights and what are they They are those inherent fundamental rights which belong to free citizens or free men in all countries such as the rights enumerated in this bill and they belong to them in all the States of the Union The right of American citizenship means something107

The Supreme Court cannot decide fundamental rightsBrennan 69 William Brennan Jr Associate Justice of the US Supreme Court from 1956-90 SHAPIRO COMMISSIONER OF WELFARE OF CONNECTICUT v THOMPSON No 9 4211969 httpsscholargooglecomscholar_casecase=6690948768913204766amphl=enampas_sdt=6ampas_vis=1ampoi=scholarr ms

I think this branch of the compelling interest doctrine particularly unfortunate and unnecessary It is unfortunate because it creates an exception which threatens to swallow the standard equal protection rule Virtually every state statute affects important rights This Court has repeatedly held for example that the traditional equal protection standard is applicable to statutory classifications affecting such fundamental matters as the right to pursue a particular occupation[11] the right to receive greater or smaller wages[12] or to work more or less hours[13] and the right to inherit property[14] Rights such as these are in principle indistinguishable from those involved here and to extend the compelling interest rule to all cases in which such rights are affected would go far toward making this Court a super-legislature This branch of the doctrine is also unnecessary When the right affected is one assured by 662662 the Federal Constitution any infringement can be dealt with under the Due Process Clause But when a statute affects only matters not mentioned in the Federal Constitution and is not arbitrary or irrational I must reiterate that I know of nothing which entitles this Court to pick out particular human activities characterize them as fundamental and give them added protection under an unusually stringent equal protection test

2nc at no resourcesCongress has a plethora of resources for constitutional analysisFisher 85 Louis Fisher PhD (1967) and MA (1966) in political science New School for Social Research Scholar in Residence Constitution Project Previously Senior Specialist in Separation of Powers at Congressional Research Service (1970 to 2006) and Specialist in Constitutional Law with the Law Library Library of Congress (2006 to August 27 2010) In an article published in this Review in 1983 Judge Abner Mikva contended that Congress lacks the political incentive and the institu- tional capacity to perform a meaningful constitutional analysis of pending legislation Mr Fisher disagrees with that contention and attempts to refute it in this Article He argues that Congress has ample resources to perform effective constitutional analysis Congress not only has its own sizable staff to assist with such analysis but it also can turn to outside experts and counsel for advice Mr Fisher examines historical and contemporary examples of constitutional debate conducted by Con- gress to demonstrate that Congress can analyze difficult constitutional questions effectively Congress in Mr Fishers view is fulfilling the duty it shares with the judiciary and the chief executive to uphold the Constitution

Net Benefit

1nc nb ndash legitimacy Congress avoids the legitimacy disad ndash plan and perm crush the rule of lawLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

An easy response is that political factors influence legal change through legislative enactments as well To be sure legislatures change rules based on the majority‟s policy preferences and may even do so retroactively under certain circumstances But judicial alterations of precedent are by their very nature retroactive unless a court is willing to take the extreme step of rendering a judgment with prospective effect only Prospective judicial rulings have been generally foreclosed at the federal level 1 While other courts (particularly state courts) are not bound by the Supreme Court‟s pronouncements on retroactivity in the interpretation and application of state law many have nevertheless adopted a similar stance on prospectivity Moreover at least at the federal level a judicial presumption against statutory retroactivity exists which must be overcome before a court will find a statute has retroactive effect2 This presumption is followed in many state courts as well Thus a qualitative difference exists between alterations that are made by the legislature and that affect legal expectations and alterations made by the judiciary to prevailing precedential rules3 That qualitative distinction makes a profound difference when it comes to evaluating either type of legal change on the rule of law Judicial alterations of precedent have an arguably greater negative impact on the rule of law than do legislative alterations of existing statutory rules (or legislative creation of new rules) This distinction between legislative and judicial alteration of prevailing rules is critical even where judges are elected To be sure charges of judicial activism or policy making have less force in states that elect their judges since those judges share democratic credentials with legislative policy makers Nevertheless the retroactive nature of judicial rulings generally applies even in states with elected judiciaries as a consequence when elected judges overturn precedent their decisions have an ex post facto character even if the overruling court experiences greater electoral accountability to the public These considerations raise interesting empirical questions If an elected judiciary appreciates its democratic qualifications it may feel freer to overturn precedent in the face of electoral pressures to do so At the same time excessive overruling may attract the ire of interest groups bent on unseating a particular judge and thus may become a point of contention in the next election Assuming the electorate cares about precedent (or is educated about its importance) frequent votes to overturn may not be viewed favorably by the voting public Adherence to stare decisis may thus cut two ways for elected judges

2nc nb ndash legitimacy Court predictability key to rule of lawLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Legal stability and predictability are a fundamental part of ldquowhat people mean by the Rule of Lawrdquo (Schwarzschild 2007 686) In the absence of stability and predictability in law citizens have difficulty managing their affairs effectively (Eskridge and Frickey 1994) Legal stability also has a moral valence insofar as it assures that like cases will be treated equally In common law systems legal stability and predictability are furthered by judicial adherence to precedent and the informal norm of stare decisis While legal stability is generally favored little empirical research has focused on whether it may be encouraged or discouraged within courts via institutional design Our focus is on whether the institutional characteristics of a court system influence legal stability with particular attention to whether such factors influence a court‟s propensity to destabilize the law by overruling existing precedents We evaluate these influences in the state supreme courts because of the remarkable institutional variation that exists among them In doing so we recognize that the stability of precedent must sometimes be subverted in order to achieve other beneficial objectives While greater legal stability is generally preferred absolute legal stability would produce a rigid legal paradigm impervious to changing societal norms and practices Because (with a nod to Holmes) experience rather than logic vitalizes law stare decisis has developed as an informal norm that may occasionally bend to changing circumstances Yet because stare decisis does not constitute a formal norm that binds justices through specific and formal external sanctions adherence to the norm may vary across individual judges and institutions Judges must willfully choose to follow precedent and those choices are likely subject to the same types of influences that shape human behavior more generally When judges dispense with prevailing doctrine in favor of a new rule it has the potential to throw citizens‟ expectations into disarray If judges frequently choose to do so it creates a less predictable legal environment for the development of economic and other human relations

Consensual norms are key to institutional legitimacyLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Among the most important informal norms within collegial courts are those that involve consensual decision making Such consensual norms govern judges‟ propensity to write dissenting or concurring opinions that publicize their disagreements (see Caldeira and Zorn 1998 Narayan and Smyth 2005) as well as their

willingness to adhere to existing precedent (Rasmusen 1994 Spaeth and Segal 1999 Hansford and Spriggs 2006) These norms may emerge because of a shared commitment to the rule of law or to institutional legitimacy They may also exist however because policy-oriented judges motivated to ensure that their own precedents are respected are able to enforce the norm in some way against those judges who are less respectful of precedent 4 The strength of consensual norms within courts is critical to their institutional legitimacy in many ways For example published dissentsmdashdescribed by one scholar as representing ldquoinstitutional disobediencerdquo (Campbell 1983 304)mdashhave the potential to elucidate needed change in legal doctrine and thus serve a useful purpose in some situations But ldquotoo much dissensus weakens precedent confuses the law encourages further appeals and leads to dissatisfaction among judgesrdquo (Sheldon 1999 115) The institutional impact of high levels of dissent has been illustrated empirically at the United States Courts of Appeals dissent rate is positively associated with reversal rate when controlling for other factors (Hettinger Lindquist and Martinek 2006 101) One causal explanation for this association is that dissent rates produce doctrinal ambiguity that creates interpretive difficulties for lower court judges At the US Supreme Court some have charged that divided decisions complicate implementation of Court precedents by lower courts (see Corley 2006) Moreover vote margin is positively associated with overruling thus contributing to less stable and enduring precedent (Hansford and Spriggs 2006 ch 5) High dissent rates also seem likely to generate higher rates of appeal and reduce the likelihood that litigants will settle their disputes (Priest and Klein 1984) And finally individuated opinions by appellate court judges highlight the ldquopoliticizedrdquo nature of judicial decisions (see Walker Epstein and Dixon 1988 362) which has the potential to reduce public confidence in judicial objectivity Thus while dissent may serve some laudatory purposes at some critical level excessive dissent may undermine other institutional goals and objectives

Affirmative

Generic AnswersThe Supreme Court has ultimate deciding powerClaus06 Laurence Claus Professor of Law University of San Diego The American Journal Of Comparative Law

The current orthodoxy treats Congresss power to make Exceptions to the supreme Courts appellate jurisdiction as a power to deny the Court ultimate judgment over at least some of the matters to which Article III extends the judicial Power of the United States Scholars differ in their accounts of the degree to which Congress may withhold Article III jurisdiction from the Court but the opinion that significant withholding may occur is almost universal n2 Yet the most coherent reading of Article III is not the orthodox one Article III can be read to set forth a syllogism Through that syllogism the text seems to guarantee that one supreme Court will hold a power of ultimate judgment over every dispute that parties choose to litigate so long as that dispute is one to which Article III extends the judicial Power of the United States Both language and drafting history better support reading Congresss Exceptions power merely as a device for switching routes to the same judicial destination In exercising that power Congress may stipulate that for some matters within the judicial Power the supreme Court is to have not only the last word but also the first

Legislative action cannot be used to correct Constitutional casesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets Cases interpreting statutes as we have been discussing receive stronger-than-normal stare decisis effect Cases interpreting the Constitution by contrast receive weaker-than-normal stare decisis effect The Supreme Court frequently explains that it will more readily overrule a constitutional decision than any other kind of decision because when it erroneously interprets the Constitution correction through legislative action is practically impossible 20 The baseline of normal stare decisis effect is apparently reserved for cases developing the federal common law21 This variety of approaches means that stare decisis effectively comes in three different strengths in the Supreme Court statutory strong common law normal and constitutional weak 22 The next part describes the rationales that have been advanced to justify the Supreme Courts application of a super-strong presumption against overruling statutory precedent

Net Benefit

1nc nb ndash legitimacy Congress avoids the legitimacy disad ndash plan and perm crush the rule of lawLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

An easy response is that political factors influence legal change through legislative enactments as well To be sure legislatures change rules based on the majority‟s policy preferences and may even do so retroactively under certain circumstances But judicial alterations of precedent are by their very nature retroactive unless a court is willing to take the extreme step of rendering a judgment with prospective effect only Prospective judicial rulings have been generally foreclosed at the federal level 1 While other courts (particularly state courts) are not bound by the Supreme Court‟s pronouncements on retroactivity in the interpretation and application of state law many have nevertheless adopted a similar stance on prospectivity Moreover at least at the federal level a judicial presumption against statutory retroactivity exists which must be overcome before a court will find a statute has retroactive effect2 This presumption is followed in many state courts as well Thus a qualitative difference exists between alterations that are made by the legislature and that affect legal expectations and alterations made by the judiciary to prevailing precedential rules3 That qualitative distinction makes a profound difference when it comes to evaluating either type of legal change on the rule of law Judicial alterations of precedent have an arguably greater negative impact on the rule of law than do legislative alterations of existing statutory rules (or legislative creation of new rules) This distinction between legislative and judicial alteration of prevailing rules is critical even where judges are elected To be sure charges of judicial activism or policy making have less force in states that elect their judges since those judges share democratic credentials with legislative policy makers Nevertheless the retroactive nature of judicial rulings generally applies even in states with elected judiciaries as a consequence when elected judges overturn precedent their decisions have an ex post facto character even if the overruling court experiences greater electoral accountability to the public These considerations raise interesting empirical questions If an elected judiciary appreciates its democratic qualifications it may feel freer to overturn precedent in the face of electoral pressures to do so At the same time excessive overruling may attract the ire of interest groups bent on unseating a particular judge and thus may become a point of contention in the next election Assuming the electorate cares about precedent (or is educated about its importance) frequent votes to overturn may not be viewed favorably by the voting public Adherence to stare decisis may thus cut two ways for elected judges

2nc nb ndash legitimacy Court predictability key to rule of lawLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Legal stability and predictability are a fundamental part of ldquowhat people mean by the Rule of Lawrdquo (Schwarzschild 2007 686) In the absence of stability and predictability in law citizens have difficulty managing their affairs effectively (Eskridge and Frickey 1994) Legal stability also has a moral valence insofar as it assures that like cases will be treated equally In common law systems legal stability and predictability are furthered by judicial adherence to precedent and the informal norm of stare decisis While legal stability is generally favored little empirical research has focused on whether it may be encouraged or discouraged within courts via institutional design Our focus is on whether the institutional characteristics of a court system influence legal stability with particular attention to whether such factors influence a court‟s propensity to destabilize the law by overruling existing precedents We evaluate these influences in the state supreme courts because of the remarkable institutional variation that exists among them In doing so we recognize that the stability of precedent must sometimes be subverted in order to achieve other beneficial objectives While greater legal stability is generally preferred absolute legal stability would produce a rigid legal paradigm impervious to changing societal norms and practices Because (with a nod to Holmes) experience rather than logic vitalizes law stare decisis has developed as an informal norm that may occasionally bend to changing circumstances Yet because stare decisis does not constitute a formal norm that binds justices through specific and formal external sanctions adherence to the norm may vary across individual judges and institutions Judges must willfully choose to follow precedent and those choices are likely subject to the same types of influences that shape human behavior more generally When judges dispense with prevailing doctrine in favor of a new rule it has the potential to throw citizens‟ expectations into disarray If judges frequently choose to do so it creates a less predictable legal environment for the development of economic and other human relations

Consensual norms are key to institutional legitimacyLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Among the most important informal norms within collegial courts are those that involve consensual decision making Such consensual norms govern judges‟ propensity to write dissenting or concurring opinions that publicize their disagreements (see Caldeira and Zorn 1998 Narayan and Smyth 2005) as well as their

willingness to adhere to existing precedent (Rasmusen 1994 Spaeth and Segal 1999 Hansford and Spriggs 2006) These norms may emerge because of a shared commitment to the rule of law or to institutional legitimacy They may also exist however because policy-oriented judges motivated to ensure that their own precedents are respected are able to enforce the norm in some way against those judges who are less respectful of precedent 4 The strength of consensual norms within courts is critical to their institutional legitimacy in many ways For example published dissentsmdashdescribed by one scholar as representing ldquoinstitutional disobediencerdquo (Campbell 1983 304)mdashhave the potential to elucidate needed change in legal doctrine and thus serve a useful purpose in some situations But ldquotoo much dissensus weakens precedent confuses the law encourages further appeals and leads to dissatisfaction among judgesrdquo (Sheldon 1999 115) The institutional impact of high levels of dissent has been illustrated empirically at the United States Courts of Appeals dissent rate is positively associated with reversal rate when controlling for other factors (Hettinger Lindquist and Martinek 2006 101) One causal explanation for this association is that dissent rates produce doctrinal ambiguity that creates interpretive difficulties for lower court judges At the US Supreme Court some have charged that divided decisions complicate implementation of Court precedents by lower courts (see Corley 2006) Moreover vote margin is positively associated with overruling thus contributing to less stable and enduring precedent (Hansford and Spriggs 2006 ch 5) High dissent rates also seem likely to generate higher rates of appeal and reduce the likelihood that litigants will settle their disputes (Priest and Klein 1984) And finally individuated opinions by appellate court judges highlight the ldquopoliticizedrdquo nature of judicial decisions (see Walker Epstein and Dixon 1988 362) which has the potential to reduce public confidence in judicial objectivity Thus while dissent may serve some laudatory purposes at some critical level excessive dissent may undermine other institutional goals and objectives

Affirmative

Generic AnswersThe Supreme Court has ultimate deciding powerClaus06 Laurence Claus Professor of Law University of San Diego The American Journal Of Comparative Law

The current orthodoxy treats Congresss power to make Exceptions to the supreme Courts appellate jurisdiction as a power to deny the Court ultimate judgment over at least some of the matters to which Article III extends the judicial Power of the United States Scholars differ in their accounts of the degree to which Congress may withhold Article III jurisdiction from the Court but the opinion that significant withholding may occur is almost universal n2 Yet the most coherent reading of Article III is not the orthodox one Article III can be read to set forth a syllogism Through that syllogism the text seems to guarantee that one supreme Court will hold a power of ultimate judgment over every dispute that parties choose to litigate so long as that dispute is one to which Article III extends the judicial Power of the United States Both language and drafting history better support reading Congresss Exceptions power merely as a device for switching routes to the same judicial destination In exercising that power Congress may stipulate that for some matters within the judicial Power the supreme Court is to have not only the last word but also the first

Legislative action cannot be used to correct Constitutional casesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets Cases interpreting statutes as we have been discussing receive stronger-than-normal stare decisis effect Cases interpreting the Constitution by contrast receive weaker-than-normal stare decisis effect The Supreme Court frequently explains that it will more readily overrule a constitutional decision than any other kind of decision because when it erroneously interprets the Constitution correction through legislative action is practically impossible 20 The baseline of normal stare decisis effect is apparently reserved for cases developing the federal common law21 This variety of approaches means that stare decisis effectively comes in three different strengths in the Supreme Court statutory strong common law normal and constitutional weak 22 The next part describes the rationales that have been advanced to justify the Supreme Courts application of a super-strong presumption against overruling statutory precedent

1nc nb ndash legitimacy Congress avoids the legitimacy disad ndash plan and perm crush the rule of lawLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

An easy response is that political factors influence legal change through legislative enactments as well To be sure legislatures change rules based on the majority‟s policy preferences and may even do so retroactively under certain circumstances But judicial alterations of precedent are by their very nature retroactive unless a court is willing to take the extreme step of rendering a judgment with prospective effect only Prospective judicial rulings have been generally foreclosed at the federal level 1 While other courts (particularly state courts) are not bound by the Supreme Court‟s pronouncements on retroactivity in the interpretation and application of state law many have nevertheless adopted a similar stance on prospectivity Moreover at least at the federal level a judicial presumption against statutory retroactivity exists which must be overcome before a court will find a statute has retroactive effect2 This presumption is followed in many state courts as well Thus a qualitative difference exists between alterations that are made by the legislature and that affect legal expectations and alterations made by the judiciary to prevailing precedential rules3 That qualitative distinction makes a profound difference when it comes to evaluating either type of legal change on the rule of law Judicial alterations of precedent have an arguably greater negative impact on the rule of law than do legislative alterations of existing statutory rules (or legislative creation of new rules) This distinction between legislative and judicial alteration of prevailing rules is critical even where judges are elected To be sure charges of judicial activism or policy making have less force in states that elect their judges since those judges share democratic credentials with legislative policy makers Nevertheless the retroactive nature of judicial rulings generally applies even in states with elected judiciaries as a consequence when elected judges overturn precedent their decisions have an ex post facto character even if the overruling court experiences greater electoral accountability to the public These considerations raise interesting empirical questions If an elected judiciary appreciates its democratic qualifications it may feel freer to overturn precedent in the face of electoral pressures to do so At the same time excessive overruling may attract the ire of interest groups bent on unseating a particular judge and thus may become a point of contention in the next election Assuming the electorate cares about precedent (or is educated about its importance) frequent votes to overturn may not be viewed favorably by the voting public Adherence to stare decisis may thus cut two ways for elected judges

2nc nb ndash legitimacy Court predictability key to rule of lawLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Legal stability and predictability are a fundamental part of ldquowhat people mean by the Rule of Lawrdquo (Schwarzschild 2007 686) In the absence of stability and predictability in law citizens have difficulty managing their affairs effectively (Eskridge and Frickey 1994) Legal stability also has a moral valence insofar as it assures that like cases will be treated equally In common law systems legal stability and predictability are furthered by judicial adherence to precedent and the informal norm of stare decisis While legal stability is generally favored little empirical research has focused on whether it may be encouraged or discouraged within courts via institutional design Our focus is on whether the institutional characteristics of a court system influence legal stability with particular attention to whether such factors influence a court‟s propensity to destabilize the law by overruling existing precedents We evaluate these influences in the state supreme courts because of the remarkable institutional variation that exists among them In doing so we recognize that the stability of precedent must sometimes be subverted in order to achieve other beneficial objectives While greater legal stability is generally preferred absolute legal stability would produce a rigid legal paradigm impervious to changing societal norms and practices Because (with a nod to Holmes) experience rather than logic vitalizes law stare decisis has developed as an informal norm that may occasionally bend to changing circumstances Yet because stare decisis does not constitute a formal norm that binds justices through specific and formal external sanctions adherence to the norm may vary across individual judges and institutions Judges must willfully choose to follow precedent and those choices are likely subject to the same types of influences that shape human behavior more generally When judges dispense with prevailing doctrine in favor of a new rule it has the potential to throw citizens‟ expectations into disarray If judges frequently choose to do so it creates a less predictable legal environment for the development of economic and other human relations

Consensual norms are key to institutional legitimacyLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Among the most important informal norms within collegial courts are those that involve consensual decision making Such consensual norms govern judges‟ propensity to write dissenting or concurring opinions that publicize their disagreements (see Caldeira and Zorn 1998 Narayan and Smyth 2005) as well as their

willingness to adhere to existing precedent (Rasmusen 1994 Spaeth and Segal 1999 Hansford and Spriggs 2006) These norms may emerge because of a shared commitment to the rule of law or to institutional legitimacy They may also exist however because policy-oriented judges motivated to ensure that their own precedents are respected are able to enforce the norm in some way against those judges who are less respectful of precedent 4 The strength of consensual norms within courts is critical to their institutional legitimacy in many ways For example published dissentsmdashdescribed by one scholar as representing ldquoinstitutional disobediencerdquo (Campbell 1983 304)mdashhave the potential to elucidate needed change in legal doctrine and thus serve a useful purpose in some situations But ldquotoo much dissensus weakens precedent confuses the law encourages further appeals and leads to dissatisfaction among judgesrdquo (Sheldon 1999 115) The institutional impact of high levels of dissent has been illustrated empirically at the United States Courts of Appeals dissent rate is positively associated with reversal rate when controlling for other factors (Hettinger Lindquist and Martinek 2006 101) One causal explanation for this association is that dissent rates produce doctrinal ambiguity that creates interpretive difficulties for lower court judges At the US Supreme Court some have charged that divided decisions complicate implementation of Court precedents by lower courts (see Corley 2006) Moreover vote margin is positively associated with overruling thus contributing to less stable and enduring precedent (Hansford and Spriggs 2006 ch 5) High dissent rates also seem likely to generate higher rates of appeal and reduce the likelihood that litigants will settle their disputes (Priest and Klein 1984) And finally individuated opinions by appellate court judges highlight the ldquopoliticizedrdquo nature of judicial decisions (see Walker Epstein and Dixon 1988 362) which has the potential to reduce public confidence in judicial objectivity Thus while dissent may serve some laudatory purposes at some critical level excessive dissent may undermine other institutional goals and objectives

Affirmative

Generic AnswersThe Supreme Court has ultimate deciding powerClaus06 Laurence Claus Professor of Law University of San Diego The American Journal Of Comparative Law

The current orthodoxy treats Congresss power to make Exceptions to the supreme Courts appellate jurisdiction as a power to deny the Court ultimate judgment over at least some of the matters to which Article III extends the judicial Power of the United States Scholars differ in their accounts of the degree to which Congress may withhold Article III jurisdiction from the Court but the opinion that significant withholding may occur is almost universal n2 Yet the most coherent reading of Article III is not the orthodox one Article III can be read to set forth a syllogism Through that syllogism the text seems to guarantee that one supreme Court will hold a power of ultimate judgment over every dispute that parties choose to litigate so long as that dispute is one to which Article III extends the judicial Power of the United States Both language and drafting history better support reading Congresss Exceptions power merely as a device for switching routes to the same judicial destination In exercising that power Congress may stipulate that for some matters within the judicial Power the supreme Court is to have not only the last word but also the first

Legislative action cannot be used to correct Constitutional casesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets Cases interpreting statutes as we have been discussing receive stronger-than-normal stare decisis effect Cases interpreting the Constitution by contrast receive weaker-than-normal stare decisis effect The Supreme Court frequently explains that it will more readily overrule a constitutional decision than any other kind of decision because when it erroneously interprets the Constitution correction through legislative action is practically impossible 20 The baseline of normal stare decisis effect is apparently reserved for cases developing the federal common law21 This variety of approaches means that stare decisis effectively comes in three different strengths in the Supreme Court statutory strong common law normal and constitutional weak 22 The next part describes the rationales that have been advanced to justify the Supreme Courts application of a super-strong presumption against overruling statutory precedent

2nc nb ndash legitimacy Court predictability key to rule of lawLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Legal stability and predictability are a fundamental part of ldquowhat people mean by the Rule of Lawrdquo (Schwarzschild 2007 686) In the absence of stability and predictability in law citizens have difficulty managing their affairs effectively (Eskridge and Frickey 1994) Legal stability also has a moral valence insofar as it assures that like cases will be treated equally In common law systems legal stability and predictability are furthered by judicial adherence to precedent and the informal norm of stare decisis While legal stability is generally favored little empirical research has focused on whether it may be encouraged or discouraged within courts via institutional design Our focus is on whether the institutional characteristics of a court system influence legal stability with particular attention to whether such factors influence a court‟s propensity to destabilize the law by overruling existing precedents We evaluate these influences in the state supreme courts because of the remarkable institutional variation that exists among them In doing so we recognize that the stability of precedent must sometimes be subverted in order to achieve other beneficial objectives While greater legal stability is generally preferred absolute legal stability would produce a rigid legal paradigm impervious to changing societal norms and practices Because (with a nod to Holmes) experience rather than logic vitalizes law stare decisis has developed as an informal norm that may occasionally bend to changing circumstances Yet because stare decisis does not constitute a formal norm that binds justices through specific and formal external sanctions adherence to the norm may vary across individual judges and institutions Judges must willfully choose to follow precedent and those choices are likely subject to the same types of influences that shape human behavior more generally When judges dispense with prevailing doctrine in favor of a new rule it has the potential to throw citizens‟ expectations into disarray If judges frequently choose to do so it creates a less predictable legal environment for the development of economic and other human relations

Consensual norms are key to institutional legitimacyLindquist and Cross 10 (Stefanie A Lindquist former dean of University of Texas Law School e taught at Georgia Vanderbilt and USCrsquos Gould School of Law in addition to Texasrsquo law school and Frank C Cross holds a joint appointment at the Law School and the Business School at University of Texas ldquoSTABILITY PREDICTABILITY AND THE RULE OF LAW STARE DECISIS AS RECIPROCITY NORMrdquo University of Texas School of Law 2010 ms)

Among the most important informal norms within collegial courts are those that involve consensual decision making Such consensual norms govern judges‟ propensity to write dissenting or concurring opinions that publicize their disagreements (see Caldeira and Zorn 1998 Narayan and Smyth 2005) as well as their

willingness to adhere to existing precedent (Rasmusen 1994 Spaeth and Segal 1999 Hansford and Spriggs 2006) These norms may emerge because of a shared commitment to the rule of law or to institutional legitimacy They may also exist however because policy-oriented judges motivated to ensure that their own precedents are respected are able to enforce the norm in some way against those judges who are less respectful of precedent 4 The strength of consensual norms within courts is critical to their institutional legitimacy in many ways For example published dissentsmdashdescribed by one scholar as representing ldquoinstitutional disobediencerdquo (Campbell 1983 304)mdashhave the potential to elucidate needed change in legal doctrine and thus serve a useful purpose in some situations But ldquotoo much dissensus weakens precedent confuses the law encourages further appeals and leads to dissatisfaction among judgesrdquo (Sheldon 1999 115) The institutional impact of high levels of dissent has been illustrated empirically at the United States Courts of Appeals dissent rate is positively associated with reversal rate when controlling for other factors (Hettinger Lindquist and Martinek 2006 101) One causal explanation for this association is that dissent rates produce doctrinal ambiguity that creates interpretive difficulties for lower court judges At the US Supreme Court some have charged that divided decisions complicate implementation of Court precedents by lower courts (see Corley 2006) Moreover vote margin is positively associated with overruling thus contributing to less stable and enduring precedent (Hansford and Spriggs 2006 ch 5) High dissent rates also seem likely to generate higher rates of appeal and reduce the likelihood that litigants will settle their disputes (Priest and Klein 1984) And finally individuated opinions by appellate court judges highlight the ldquopoliticizedrdquo nature of judicial decisions (see Walker Epstein and Dixon 1988 362) which has the potential to reduce public confidence in judicial objectivity Thus while dissent may serve some laudatory purposes at some critical level excessive dissent may undermine other institutional goals and objectives

Affirmative

Generic AnswersThe Supreme Court has ultimate deciding powerClaus06 Laurence Claus Professor of Law University of San Diego The American Journal Of Comparative Law

The current orthodoxy treats Congresss power to make Exceptions to the supreme Courts appellate jurisdiction as a power to deny the Court ultimate judgment over at least some of the matters to which Article III extends the judicial Power of the United States Scholars differ in their accounts of the degree to which Congress may withhold Article III jurisdiction from the Court but the opinion that significant withholding may occur is almost universal n2 Yet the most coherent reading of Article III is not the orthodox one Article III can be read to set forth a syllogism Through that syllogism the text seems to guarantee that one supreme Court will hold a power of ultimate judgment over every dispute that parties choose to litigate so long as that dispute is one to which Article III extends the judicial Power of the United States Both language and drafting history better support reading Congresss Exceptions power merely as a device for switching routes to the same judicial destination In exercising that power Congress may stipulate that for some matters within the judicial Power the supreme Court is to have not only the last word but also the first

Legislative action cannot be used to correct Constitutional casesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets Cases interpreting statutes as we have been discussing receive stronger-than-normal stare decisis effect Cases interpreting the Constitution by contrast receive weaker-than-normal stare decisis effect The Supreme Court frequently explains that it will more readily overrule a constitutional decision than any other kind of decision because when it erroneously interprets the Constitution correction through legislative action is practically impossible 20 The baseline of normal stare decisis effect is apparently reserved for cases developing the federal common law21 This variety of approaches means that stare decisis effectively comes in three different strengths in the Supreme Court statutory strong common law normal and constitutional weak 22 The next part describes the rationales that have been advanced to justify the Supreme Courts application of a super-strong presumption against overruling statutory precedent

willingness to adhere to existing precedent (Rasmusen 1994 Spaeth and Segal 1999 Hansford and Spriggs 2006) These norms may emerge because of a shared commitment to the rule of law or to institutional legitimacy They may also exist however because policy-oriented judges motivated to ensure that their own precedents are respected are able to enforce the norm in some way against those judges who are less respectful of precedent 4 The strength of consensual norms within courts is critical to their institutional legitimacy in many ways For example published dissentsmdashdescribed by one scholar as representing ldquoinstitutional disobediencerdquo (Campbell 1983 304)mdashhave the potential to elucidate needed change in legal doctrine and thus serve a useful purpose in some situations But ldquotoo much dissensus weakens precedent confuses the law encourages further appeals and leads to dissatisfaction among judgesrdquo (Sheldon 1999 115) The institutional impact of high levels of dissent has been illustrated empirically at the United States Courts of Appeals dissent rate is positively associated with reversal rate when controlling for other factors (Hettinger Lindquist and Martinek 2006 101) One causal explanation for this association is that dissent rates produce doctrinal ambiguity that creates interpretive difficulties for lower court judges At the US Supreme Court some have charged that divided decisions complicate implementation of Court precedents by lower courts (see Corley 2006) Moreover vote margin is positively associated with overruling thus contributing to less stable and enduring precedent (Hansford and Spriggs 2006 ch 5) High dissent rates also seem likely to generate higher rates of appeal and reduce the likelihood that litigants will settle their disputes (Priest and Klein 1984) And finally individuated opinions by appellate court judges highlight the ldquopoliticizedrdquo nature of judicial decisions (see Walker Epstein and Dixon 1988 362) which has the potential to reduce public confidence in judicial objectivity Thus while dissent may serve some laudatory purposes at some critical level excessive dissent may undermine other institutional goals and objectives

Affirmative

Generic AnswersThe Supreme Court has ultimate deciding powerClaus06 Laurence Claus Professor of Law University of San Diego The American Journal Of Comparative Law

The current orthodoxy treats Congresss power to make Exceptions to the supreme Courts appellate jurisdiction as a power to deny the Court ultimate judgment over at least some of the matters to which Article III extends the judicial Power of the United States Scholars differ in their accounts of the degree to which Congress may withhold Article III jurisdiction from the Court but the opinion that significant withholding may occur is almost universal n2 Yet the most coherent reading of Article III is not the orthodox one Article III can be read to set forth a syllogism Through that syllogism the text seems to guarantee that one supreme Court will hold a power of ultimate judgment over every dispute that parties choose to litigate so long as that dispute is one to which Article III extends the judicial Power of the United States Both language and drafting history better support reading Congresss Exceptions power merely as a device for switching routes to the same judicial destination In exercising that power Congress may stipulate that for some matters within the judicial Power the supreme Court is to have not only the last word but also the first

Legislative action cannot be used to correct Constitutional casesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets Cases interpreting statutes as we have been discussing receive stronger-than-normal stare decisis effect Cases interpreting the Constitution by contrast receive weaker-than-normal stare decisis effect The Supreme Court frequently explains that it will more readily overrule a constitutional decision than any other kind of decision because when it erroneously interprets the Constitution correction through legislative action is practically impossible 20 The baseline of normal stare decisis effect is apparently reserved for cases developing the federal common law21 This variety of approaches means that stare decisis effectively comes in three different strengths in the Supreme Court statutory strong common law normal and constitutional weak 22 The next part describes the rationales that have been advanced to justify the Supreme Courts application of a super-strong presumption against overruling statutory precedent

Affirmative

Generic AnswersThe Supreme Court has ultimate deciding powerClaus06 Laurence Claus Professor of Law University of San Diego The American Journal Of Comparative Law

The current orthodoxy treats Congresss power to make Exceptions to the supreme Courts appellate jurisdiction as a power to deny the Court ultimate judgment over at least some of the matters to which Article III extends the judicial Power of the United States Scholars differ in their accounts of the degree to which Congress may withhold Article III jurisdiction from the Court but the opinion that significant withholding may occur is almost universal n2 Yet the most coherent reading of Article III is not the orthodox one Article III can be read to set forth a syllogism Through that syllogism the text seems to guarantee that one supreme Court will hold a power of ultimate judgment over every dispute that parties choose to litigate so long as that dispute is one to which Article III extends the judicial Power of the United States Both language and drafting history better support reading Congresss Exceptions power merely as a device for switching routes to the same judicial destination In exercising that power Congress may stipulate that for some matters within the judicial Power the supreme Court is to have not only the last word but also the first

Legislative action cannot be used to correct Constitutional casesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets Cases interpreting statutes as we have been discussing receive stronger-than-normal stare decisis effect Cases interpreting the Constitution by contrast receive weaker-than-normal stare decisis effect The Supreme Court frequently explains that it will more readily overrule a constitutional decision than any other kind of decision because when it erroneously interprets the Constitution correction through legislative action is practically impossible 20 The baseline of normal stare decisis effect is apparently reserved for cases developing the federal common law21 This variety of approaches means that stare decisis effectively comes in three different strengths in the Supreme Court statutory strong common law normal and constitutional weak 22 The next part describes the rationales that have been advanced to justify the Supreme Courts application of a super-strong presumption against overruling statutory precedent

Generic AnswersThe Supreme Court has ultimate deciding powerClaus06 Laurence Claus Professor of Law University of San Diego The American Journal Of Comparative Law

The current orthodoxy treats Congresss power to make Exceptions to the supreme Courts appellate jurisdiction as a power to deny the Court ultimate judgment over at least some of the matters to which Article III extends the judicial Power of the United States Scholars differ in their accounts of the degree to which Congress may withhold Article III jurisdiction from the Court but the opinion that significant withholding may occur is almost universal n2 Yet the most coherent reading of Article III is not the orthodox one Article III can be read to set forth a syllogism Through that syllogism the text seems to guarantee that one supreme Court will hold a power of ultimate judgment over every dispute that parties choose to litigate so long as that dispute is one to which Article III extends the judicial Power of the United States Both language and drafting history better support reading Congresss Exceptions power merely as a device for switching routes to the same judicial destination In exercising that power Congress may stipulate that for some matters within the judicial Power the supreme Court is to have not only the last word but also the first

Legislative action cannot be used to correct Constitutional casesBarret 05 Amy Coney Barret Assistant Professor of Law Notre Dame Law School ldquoStatutory Stare Decisis in the Courts of Appealsrdquo Scholarly Works George Washington Law Review 2005 httpscholarshiplawndeducgiviewcontentcgiarticle=1794ampcontext=law_faculty_scholarship ms

This special treatment of statutory precedent fits into a system in which the Supreme Court varies the strength of the precedent according to the source of law that the precedent interprets Cases interpreting statutes as we have been discussing receive stronger-than-normal stare decisis effect Cases interpreting the Constitution by contrast receive weaker-than-normal stare decisis effect The Supreme Court frequently explains that it will more readily overrule a constitutional decision than any other kind of decision because when it erroneously interprets the Constitution correction through legislative action is practically impossible 20 The baseline of normal stare decisis effect is apparently reserved for cases developing the federal common law21 This variety of approaches means that stare decisis effectively comes in three different strengths in the Supreme Court statutory strong common law normal and constitutional weak 22 The next part describes the rationales that have been advanced to justify the Supreme Courts application of a super-strong presumption against overruling statutory precedent

Congress canrsquot solve- no qualified representativesWest 06 Robin West Professor of Law Georgetown University Law Center A Response to Goodwin Liu 116 Yale LJ Pocket Part 157 112106 httpthepocketpartorg20061121westhtml

My second point is entirely practical A Constitution directed at legislatures and intended for legislative interpretation and implementation requires legislators equipped willing and desirous to so receive it We dont currently have anything even remotely resembling such a legislative assembly at either the federal or state level for a very long time we have not delegated the work of constitutional interpretation to Congress and it shows There are a handful of constitutionally savvy senators - Joseph Biden Orrin Hatch Barack Obama - but there is no institutional sense in Congress that senators or representatives should be interested and engaged readers interpreters and implementers of the constitutional text Nor do our representatives seek out qualified staff to help them develop constitutionally guided law While we expect constitutional wisdom reason moral astuteness and moral ambition from judges we expect horse trading at best from Congress Courts reason toward justice with an eye on liberty and equality and citizenship for all while Congress acts and on the basis of preference whim good reasons bad reasons or no reasons For the sort of deliberative morally ennobling politics we habitually identify with a highly ethical form of practical reason we go to the courts

Cong Canrsquot SolveCongress canrsquot solve- this card probably applies to your aff too thoughBarone and DeBray 12 Charles Barone director of federal policy in the Washington office of Democrats for Education Reform amp Elizabeth DeBray an associate professor of education at the University of Georgia ldquoThe Role of Congress in Education Policyldquo Education Week Harvard Education Press May 2 2012 httpwwwedweekorgewarticles2012050230baroneh31html ms

A practical look at the education laws established by Congress over the past half-century shows three things that Congress is uniquely positioned to do well promote equal educational opportunity set goals and keep score and invest in research and development Further historical reflection also shows that Congress has two significant limitations an inability to respond quickly and a limited capacity to monitor and enforce

Over the past 50 years Congress has enacted sweeping changes to federal law when a segment of US society was judged as having been denied equal educational opportunity and when states and municipalities were unable or unwilling to remedy those inequities Title I of the 1965 Elementary and Secondary Education Act was intended to equalize the educational opportunities available to poor and minority children Title IX of the 1965 Civil Rights Act as amended in 1972 banned sexual discrimination in federally funded education programs The 1975 Education for All Handicapped Children Act known today as the Individuals with Disabilities Act or IDEA granted the right to a free and appropriate public education for students with disabilities Pell Grants established in 1965 expanded access to postsecondary education for millions of low-income studentsTitle I for example by far the largest federal K-12 education program tracks with several notable outcomes over its 47-year history Overall it has provided additional resources for disadvantaged groups and has paralleled growth in student achievement and narrowed achievement gaps between poor and minority students and their more advantaged peers (Although some observers believe there have been serious negative instructional consequences of the No Child Left Behind Actrsquos testing and accountability model We the authors disagree with each other on this point) Because of amendments to the ESEA in 2001 (the No Child Left Behind edition of the law) the cumulative shift in Title I education dollars to the neediest 20 percent of children in the highest-poverty schools was $65 billion over the subsequent 10 years Put in local terms thatrsquos a lot of bake sales

While Title I has shown that Congress is able to promote more equal educational opportunities for all itrsquos still unclear whether Congress has the capacity to ensure that all of its education policies are implemented as intended Given that it is setting policy for tens of millions of schoolchildren Congress must rely on fairly blunt legislative instruments With laws that follow clear bright linesmdashlike funding formulas or investments in pilot programsmdashCongress is generally able to achieve its aims But on vaguer policies or those that require micromonitoring of districts and schools it tends to fall short

Congress is deliberately hamstrung by the separation of powers under the US Constitution For example in the late 1990s Congress passed a law requiring schools of education to report the passing rates of their graduates on teacher-licensing exams

The Clinton administration gave in to political pressure defied congressional intent and set the regulation in such a way that education schools could game their numbers More than 90 percent of the schools now report a misleading 100 percent passing rate

While the federal government has limited bandwidth to set micropolicy in the area of standards and assessments professional development and school turnarounds it does not have the human resources or technological capacity to monitor the details of education policies in 100000 schools even if the executive branch wanted to do so

AT Rational BasisAll cases are fair regardless of the review standardMcNamararsquo13 Robert McNamara an attorney for the institute of justice 3-27-2013 US v Windsor Rational Basis Review Should Not Preclude Unconstitutionality No Publication httpwwwjuristorghotline201304robert-mcnamara-rational-basis-windsorphp

The advantage to this approach is two-fold First it allows the Court to avoid the heightened-scrutiny question altogether After decades of experimentation the Courts attempt to fit the realities of American government into strict tiers of scrutiny has yielded a jurisprudence that is at best inconsistent and difficult to justify on principle More through historical accident than consistent analysis some characteristics (like whether ones parents were married) yield higher levels of judicial protection while others (like ones level of educational attainment or simply ones level of political influence) do not Delving back into the tiered-scrutiny thicket to decide whether one more subgroup of Americans is (or is not) entitled to meaningful judicial review is unlikely to improve matters

Second mdash and for millions of Americans whose constitutional rights deserve equal protection perhaps more importantly mdash this allows the Court to once and for all reject its most expansive dicta about the rational basis test and reaffirm a simple truth the US Constitution requires judges to look at facts in all cases There exists no standard of review under which the Court may simply disregard logic There exists no standard under which the Court may disregard facts nor one under which the Court will allow itself to be lied to about a laws real purposes or effects Finally rejecting the aforementioned dicta and explicitly embracing an articulation of the rational basis test that accurately explains all of the Courts rational basis decisions (the ones where the government wins and the many where the government loses) will not just clarify the Courts jurisprudence It will also be a bedrock victory for real judicial engagement by reassuring judges in lower courts that they are allowed to do their jobs mdash to look at evidence with their eyes open and their minds engaged mdash in all cases

AT Rational BasisAll cases are fair regardless of the review standardMcNamararsquo13 Robert McNamara an attorney for the institute of justice 3-27-2013 US v Windsor Rational Basis Review Should Not Preclude Unconstitutionality No Publication httpwwwjuristorghotline201304robert-mcnamara-rational-basis-windsorphp

The advantage to this approach is two-fold First it allows the Court to avoid the heightened-scrutiny question altogether After decades of experimentation the Courts attempt to fit the realities of American government into strict tiers of scrutiny has yielded a jurisprudence that is at best inconsistent and difficult to justify on principle More through historical accident than consistent analysis some characteristics (like whether ones parents were married) yield higher levels of judicial protection while others (like ones level of educational attainment or simply ones level of political influence) do not Delving back into the tiered-scrutiny thicket to decide whether one more subgroup of Americans is (or is not) entitled to meaningful judicial review is unlikely to improve matters

Second mdash and for millions of Americans whose constitutional rights deserve equal protection perhaps more importantly mdash this allows the Court to once and for all reject its most expansive dicta about the rational basis test and reaffirm a simple truth the US Constitution requires judges to look at facts in all cases There exists no standard of review under which the Court may simply disregard logic There exists no standard under which the Court may disregard facts nor one under which the Court will allow itself to be lied to about a laws real purposes or effects Finally rejecting the aforementioned dicta and explicitly embracing an articulation of the rational basis test that accurately explains all of the Courts rational basis decisions (the ones where the government wins and the many where the government loses) will not just clarify the Courts jurisprudence It will also be a bedrock victory for real judicial engagement by reassuring judges in lower courts that they are allowed to do their jobs mdash to look at evidence with their eyes open and their minds engaged mdash in all cases

AT LiuLiursquos reading of the Citizenship Clause is false West 06 Robin West Professor of Law Georgetown University Law Center A Response to Goodwin Liu 116 Yale LJ Pocket Part 157 112106 httpthepocketpartorg20061121westhtml

Lius argument has two somewhat undeveloped implications that I believe are worth exploring one jurisprudential and one practical Let me begin with the jurisprudential As Liu acknowledges his reading of the Constitutions Citizenship Clause goes against the grain of now-conventional Fourteenth Amendment wisdom First he reads that Clause to convey positive rights and finds support for that interpretation in the similar readings of the Clause by authoritative others Second he reads the Fourteenth Amendment as directed to Congress as well as to courts and as imposing duties upon Congress to act

If Liu is right then neither the Courts nor most commentators understandings of the Fourteenth Amendment fully capture the meaning of the constitutional text and history Liu therefore puts forward his historical analysis as a corrective to contemporary mis-readings We are wrong he suggests to assume so confidently that the Constitution is one of negative rights only that the Citizenship Clause confers no positive rights on citizens and that the legal community that produced the Reconstruction Amendments had no sense of the connections between education and citizenship To the contrary at least some of the Fourteenth Amendments Framers understood the centrality of education to citizenship and some viewed the Fourteenth Amendment as imposing obligations upon Congress and the states to provide education And we are wrong Liu claims to regard the Reconstruction Amendments as a directive to courts to strike errant legislation rather than as a prod to the legislator to enact law that promotes liberty equality and citizenship At least Liu argues we are wrong to think that our contemporary understanding of the Constitution is the only possible understanding or that it is unequivocally the understanding that was shared by all of the Framers of the Reconstruction Amendments

Liu does not however address the underlying jurisprudence of his historical reconstruction - an omission that may have consequences for the plausibility of his reading of the Fourteenth Amendment He does not for example consider that the Reconstruction Era actors may have had a different jurisprudential understanding of the meaning of constitutional law and of the role of the judiciary in enforcing it As Larry Kramer n2Mark Tushnet n3 and a number of other historians have argued it is quite possible that lawyers of the Reconstruction era had a different constitutional jurisprudence from that which governs modern judicial understandings of constitutional guarantees If Kramer and Tushnet are right about that then interpretations that made sense to the Reconstruction generation may make much less sense to us today It [159] may be that if we are to reinvigorate the Reconstruction vision of the Fourteenth Amendments guarantee of citizenship and of the role of education in achieving that guarantee we will need to reinvigorate some forgotten jurisprudential ideas as well

Let me sketch out the contrast I have in mind and its implications for contemporary constitutional thought very briefly Perhaps it was possible during Reconstruction (and perhaps at the Founding as well) to speak of the Constitution as a document that guided the hand of Congress as well as restrained it that spoke to congressional obligations to act as well as congressional obligations to refrain from acting and that expressed a law for legislation addressed to the legislator The Constitution it could still at least be said then had a political as opposed to a purely legal existence it was addressed to the political branches no less than the judicial It was possible given such an understanding of what Tushnet now calls the Constitutions political law n4 to understand the Fourteenth Amendment as a political directive to the political branches to do certain things with their power rather than a legal directive to the judicial branch to restrain legislative power through enforcing negative rights It might have been possible to understand

the Constitution as setting forth a moral direction for politics rather than as a law meant to relentlessly restrain and check legislative power

It is much harder for us today to see the Constitution as such a document Rather for reasons I have discussed at length elsewhere n5 we tend instead to see the constitution as ordinary law and hence constitutional questions - such as whether Congress is constitutionally obligated to ensure that the States provide a minimally adequate education to all citizens - as questions of ordinary law Constitutional law tells us what the relevant actors - legislators executives and so forth - may and may not do just as commercial law tells us what sellers buyers and holders of secured loans or commercial paper may and may not do We view the Constitution on this jurisprudential scheme as a source of ordinary law rather than as a source of political wisdom inspiration or guidance Further and importantly all of us now being legal realists we view these questions of ordinary law - including constitutional law - as questions for courts to decide Constitutional questions then including those of the sort Liu raises become by definition questions of law for courts to decide

How does all of this affect the fragile case for a purported right to a minimally adequate education If constitutional rights and duties are those [160] rights and duties which are a part of law and law is that which is discovered expressed and enforced by courts then it is not at all surprising that constitutional rights have been limited to those that are negative and correlatively that legislative duties grounded in constitutionalism have virtually disappeared As a practical matter courts cannot enforce positive rights as a jurisprudential matter they are disinclined to do so Courts exist to do legal justice between parties not to provide social goods whether or not those goods are constitutionally required Given our contemporary jurisprudential identification of law with judicial utterance it will accordingly be exceedingly difficult for modern constitutionalists to read the constitutional text to include a positive right to an education and an affirmative duty of legislators to provide one

Distinguish Counterplan

Counterplan

1nc distinguish Replace overrule with distinguish

The counterplan solves the case and avoids the court clog amp stare decisis disadsLAMOND 14 (Grant Lamond is a University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law Balliol College Grant Lamond Precedent and Analogy in Legal Reasoning The Stanford Encyclopedia of Philosophy (Spring 2014 Edition) Edward N Zalta (ed) First published Tue Jun 20 2006 URL = lthttpplatostanfordeduarchivesspr2014entrieslegal-reas-precgt)RK

The main challenge for this account of precedent lies in explaining when a later court is bound to follow a precedent which it regards as having been incorrectly decided In the case of the trust property the later court may think the precedent court mistaken to have concluded that the recipient must return the property to the beneficiary May a later court avoid the result of the precedent by pointing to any general factual difference between the cases (eg this is real property rather than personal property this is an implied rather than an express trust) and distinguish the precedent by stating a narrower ratio After all the balance of reasons never supported the precedent in the first place so shouldnt it be confined to the narrowest possible statement of its facts In which case precedents seem to have very little binding force indeed One obvious possibility for avoiding this problem would be to ask how the precedent court would have assessed the facts in later case But although this would be satisfactory in theory (if sometimes difficult in practice) it again does not reflect legal practice Courts sometimes approach the question in this way but often they do not and there is no legal requirement that they do so A better response is this the basic common law requirement in stare decisis is to treat earlier cases as correctly decided A case may be distinguished but only if that distinction does not imply that the precedent was wrongly decided So in the later case the court must decide whether the factual difference (real versus personal property implied versus express trust) provides a better justification against the earlier decision than the facts of that case on their own If it does then the court may distinguish (citing that differences with the original case) since that does not imply that precedent was mistaken If notmdashbecause real property or implied trusts raise no special considerations in this contextmdashthen the precedent must be followed This approach of course assumes that it is possible to make these sorts of comparative judgements (for arguments that this is not generally possible see Alexander 1989 34ndash7)

Counterplan

1nc distinguish Replace overrule with distinguish

The counterplan solves the case and avoids the court clog amp stare decisis disadsLAMOND 14 (Grant Lamond is a University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law Balliol College Grant Lamond Precedent and Analogy in Legal Reasoning The Stanford Encyclopedia of Philosophy (Spring 2014 Edition) Edward N Zalta (ed) First published Tue Jun 20 2006 URL = lthttpplatostanfordeduarchivesspr2014entrieslegal-reas-precgt)RK

The main challenge for this account of precedent lies in explaining when a later court is bound to follow a precedent which it regards as having been incorrectly decided In the case of the trust property the later court may think the precedent court mistaken to have concluded that the recipient must return the property to the beneficiary May a later court avoid the result of the precedent by pointing to any general factual difference between the cases (eg this is real property rather than personal property this is an implied rather than an express trust) and distinguish the precedent by stating a narrower ratio After all the balance of reasons never supported the precedent in the first place so shouldnt it be confined to the narrowest possible statement of its facts In which case precedents seem to have very little binding force indeed One obvious possibility for avoiding this problem would be to ask how the precedent court would have assessed the facts in later case But although this would be satisfactory in theory (if sometimes difficult in practice) it again does not reflect legal practice Courts sometimes approach the question in this way but often they do not and there is no legal requirement that they do so A better response is this the basic common law requirement in stare decisis is to treat earlier cases as correctly decided A case may be distinguished but only if that distinction does not imply that the precedent was wrongly decided So in the later case the court must decide whether the factual difference (real versus personal property implied versus express trust) provides a better justification against the earlier decision than the facts of that case on their own If it does then the court may distinguish (citing that differences with the original case) since that does not imply that precedent was mistaken If notmdashbecause real property or implied trusts raise no special considerations in this contextmdashthen the precedent must be followed This approach of course assumes that it is possible to make these sorts of comparative judgements (for arguments that this is not generally possible see Alexander 1989 34ndash7)

1nc distinguish Replace overrule with distinguish

The counterplan solves the case and avoids the court clog amp stare decisis disadsLAMOND 14 (Grant Lamond is a University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law Balliol College Grant Lamond Precedent and Analogy in Legal Reasoning The Stanford Encyclopedia of Philosophy (Spring 2014 Edition) Edward N Zalta (ed) First published Tue Jun 20 2006 URL = lthttpplatostanfordeduarchivesspr2014entrieslegal-reas-precgt)RK

The main challenge for this account of precedent lies in explaining when a later court is bound to follow a precedent which it regards as having been incorrectly decided In the case of the trust property the later court may think the precedent court mistaken to have concluded that the recipient must return the property to the beneficiary May a later court avoid the result of the precedent by pointing to any general factual difference between the cases (eg this is real property rather than personal property this is an implied rather than an express trust) and distinguish the precedent by stating a narrower ratio After all the balance of reasons never supported the precedent in the first place so shouldnt it be confined to the narrowest possible statement of its facts In which case precedents seem to have very little binding force indeed One obvious possibility for avoiding this problem would be to ask how the precedent court would have assessed the facts in later case But although this would be satisfactory in theory (if sometimes difficult in practice) it again does not reflect legal practice Courts sometimes approach the question in this way but often they do not and there is no legal requirement that they do so A better response is this the basic common law requirement in stare decisis is to treat earlier cases as correctly decided A case may be distinguished but only if that distinction does not imply that the precedent was wrongly decided So in the later case the court must decide whether the factual difference (real versus personal property implied versus express trust) provides a better justification against the earlier decision than the facts of that case on their own If it does then the court may distinguish (citing that differences with the original case) since that does not imply that precedent was mistaken If notmdashbecause real property or implied trusts raise no special considerations in this contextmdashthen the precedent must be followed This approach of course assumes that it is possible to make these sorts of comparative judgements (for arguments that this is not generally possible see Alexander 1989 34ndash7)

2nc solvency Distinguishing is an alternative to overrulingLAMOND 14 (Grant Lamond is a University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law Balliol College Grant Lamond Precedent and Analogy in Legal Reasoning The Stanford Encyclopedia of Philosophy (Spring 2014 Edition) Edward N Zalta (ed) First published Tue Jun 20 2006 URL = lthttpplatostanfordeduarchivesspr2014entrieslegal-reas-precgt)RK

An integral part of legal reasoning using precedents is the practice of distinguishing Distinguishing involves a precedent not being followed even though the facts of the later case fall within the scope of the ratio of the earlier case As the later case falls within the scope of the earlier ratio (ie within the scope of the rule) one might expect that the decision in the later case must be the same (unless the court has the power to overrule the earlier case and decides to do so) In legal reasoning using precedents however the later court is free not to follow the earlier case by pointing to some difference in the facts between the two cases even though those facts do not feature in the ratio of the earlier caseTake the trust example in a later case the recipient of trust property may not have paid for the property but may have relied on the receipt in entering into another arrangement (eg in using the property as security for a loan) The later court may hold that the recipient is entitled to retain the property and justify its decision by ruling that where (i) the defendant has received trust property (ii) in breach of trust and (iii) has not paid for the property but has (vii) relied upon the receipt to disadvantageously alter her position then the defendant is entitled to retain the property (This result would still leave the beneficiary with a claim against the trustee for the value of the property)

The effect of distinguishing then is that the later court is free not to follow a precedent that prima facie applies to it by making a ruling which is narrower than that made in the precedent case The only formal constraints on the later court are that (1) in formulating the ratio of the later case the factors in the ratio of the earlier case (ie (i)ndash(iii)) must be retained and (2) the ruling in the later case must be such that it would still support the result reached in the precedent case In short the ruling in the second case must not be inconsistent with the result in the precedent case but the court is otherwise free to make a ruling narrower than that in the precedent Hence the more accurate statements of the doctrine of precedent are to the effect that a later court must either follow or distinguish a binding precedentmdasha disjunctive obligation

At a formal level the practice of distinguishing can be reconciled with the view that rationes are rules by arguing that later courts have the power to modify the rule in the earlier case An analogy can be drawn to the power to overrule earlier decisions just as judges can overrule earlier cases they can also modify earlier law thereby paralleling the power of legislators to either repeal or amend the law The analogy however is very imperfect There are two difficulties (a) Common Lawyers do not conceptualise overruling and distinguishing in this parallel way and (b) the rationale for a power with this particular scope is unclear

On the first point Common Lawyers ordinarily think of precedents as constituting the law up and until they are overruled Once overruled the later decision is (normally) given retroactive effect so the law is changed for the past as well as the future But when a case is distinguished it is not often thought that the law was one thing until the later decision of a court and now another thing The law will be regarded prior to the later decision as already subject to various distinctions not mentioned by the earlier court Indeed part of the skill of a good common lawyer is grasping the law as not stated by the earlier court learning that cases are lsquodistinguishablersquo is a staple part of common law education and no common lawyer would be competent who did not appreciate that the law was not to be identified simply with the ratio of an earlier decision Common lawyers do not then conceptualise distinguishing along lines analogous to overruling

On the second point one of the peculiarities of distinguishing is that it cuts across the normal justifications for having rules namely to have a class of cases treated in a certain way despite individual variation between them with attendant gains in predictability and transparency in the decision-making process Instead the later court is free to avoid the result indicated by the earlier ratio so long as it can find some difference in facts between the two cases that narrows the earlier ratio while still supporting the result in the earlier case What is more this power is not merely given to courts of the same level of authority as the one laying down the precedent (as is the case with overruling) but is given to every court lower in the judicial hierarchy So the Court of Appeal in England cannot overrule a decision of the House of Lords (nor even its own decisions ordinarily) but it is free to distinguish a decision of the House of Lords even when the case before it falls within the ratio of the House of Lords decision So

on the rule-making view of precedent lower courts have the power to narrow the rules laid down by higher courts just so long as the narrower rule would still support the result reached in the earlier case It is unclear why lower courts should be given a power to narrow rulings of higher courts in this particularly circumscribed manner

Distinguishing solves and is legally possible Lamond rsquo07 (Grant Lamond regular faculty Oxford University ldquoPrecedentrdquo July 18 2007 httponlinelibrarywileycomdoi101111j1747-9991200700092xfull)RKThere are two major lines of criticism of this account of precedent (a) the form of judicial decisions and (b) the practice of lsquodistinguishingrsquo precedents

aenspThe form of judgments If Common Law judgments are essentially laying down legal rules then they are a peculiarly inefficient way of doing so (see Simpson lsquoCommon Lawrsquo 372 Moore 185ndash6 188ndash90 Perry lsquoJudicial Obligationrsquo 234ndash6) Judicial decisions in the Common Law are long discursive documents containing extensive discussions of the facts of the case the legal issue that the case raises what has been said in earlier decisions about this type of issue (and similar issues) what considerations speak in favour of one resolution or another as well as the courtrsquos conclusion about which partyrsquos submissions prevail Contrary to what a non-lawyer might think the ratio decidendi is not something that is stated by the court (ie it is not like the section of a statute that can be identified and quoted) but something that lawyers and later courts must infer or construct from the courtrsquos decision Which raises the question if precedents were laying down rules wouldnrsquot a more effective method of stating them have developed over time Why leave it to later courts to try to work it out This aspect of legal practice suggests that the ratio might simply be a way of summarising the effect of a case rather than being that effect So the ratio may be a useful way of conveying the basic significance of a case without fully capturing what is legally significant in the case This accords with a standard thought among Common Lawyers that courts are bound by precedents ie by the case taken as a whole2

benspDistinguishing Putting the first problem to one side there is another aspect of the Common Law that makes the rule-creating view of precedent puzzling ndash the practice of distinguishing (see Raz lsquoLaw and Value in Adjudicationrsquo 183ndash9 Lamond lsquoDo

Precedents Create Rulesrsquo 9ndash15) Although precedents are lsquobindingrsquo a lower court is permitted to lsquodistinguishrsquo a precedent on the basis of any factual difference between the later case and the precedent For example a court may have ruled that where property is stolen it can be recovered by the original owner from a party who bought the property in good faith from the thief (an lsquoinnocent purchaserrsquo) Nonetheless a later court is at liberty to hold that an owner cannot recover where their own negligence has led the purchaser to believe that the thief was the owner (eg by entrusting the thief with the title documents to the property) The precedent includes no such qualification to its rationdash it does not say that an owner can recover stolen property from an innocent buyer unless the owner has negligently contributed to the buyerrsquos belief in the thiefrsquos good title ndash yet a later court is permitted to narrow the decision in this way The only restriction on distinguishing is that the narrower ratio had it been applied to the facts of the precedent case would still have led to the result reached in the precedent The problem with distinguishing is not that the rule-creating view of precedent cannot formally accommodate it It can ndash by arguing that lower courts have the power to modify the ratio of a precedent just as legislators can amend a statute (Raz lsquoLaw and Value in Adjudicationrsquo 185ndash8) The problem is that the analogy to

statute is misleading Unlike a statute no common lawyer thinks the legal effect of a precedent is exhausted by the content of the ratio Instead common lawyers believe that any ratio is an incomplete statement of the law already subject to many distinctions Instead of a ratio telling a later court how to decide a later case (as rules do) it tells the court to consider the decision and determine whether or not it is distinguishable If there are good reasons for distinguishing then the later court is not bound to follow the precedent Hence the more accurate statements of the doctrine of precedent are to the effect that a later court is bound to either follow or distinguish the decision

Simply distinguishing a case is less complex and easier than overrulingLamond rsquo07 (Grant Lamond regular faculty Oxford University ldquoPrecedentrdquo July 18 2007 httponlinelibrarywileycomdoi101111j1747-9991200700092xfull)RK

The third alternative to the rule-making view of precedent conceptualises precedents as examples to be followed in future cases whose facts are on all fours with the precedent case (Levenbook) A court may decide that a case should be decided in a particular way without it being clear which characteristics of the case were essential to that outcome The precedent does nonetheless determine that this is the way such cases are to be decided in the future Which later cases fall into this category ndash

which are the lsquosamersquo or lsquoon all foursrsquo with the original case ndash is a matter determined by social judgement There are cases where most members of the community would regard the facts as relevantly the same even if they could not articulate the grounds for this judgement Unlike the principles view the exemplary view does not regard the assessments of relevant sameness as depending upon the justifications for the original decision The justifications given by the precedent court may not properly fit the facts of the case and there may be no better justification available The case is still binding on later courts where the facts are on all fours Where the later case is not on all fours the later court must decide whether or not to extend the emerging category

The advantage of this view is it can easily explain the relatively indeterminate style of court judgements and the flexibility that later courts have over the best way to characterise a group of cases that follow each other And it is clearly true that there are situations where it is difficult to find a satisfactory way to categorise a group of cases On the other hand it can be argued that even if a precedent court fails to characterise the facts in such a way that allows a ratio to be clearly identified (or simply mischaracterises the facts) a later court is still bound to attribute some ratio to the earlier decision and to find the appropriate level of generality in characterising the facts An example must be an example of something and so it must be fit within a framework of concepts that account for the legal significance of the example If so this approach may simply be an important supplement to theories of precedent that give the ratioan important independent role

This brief overview of the competing conceptions of precedent gives rise to a range of questions that remain relatively unexplored in the existing literature

aenspVertical and horizontal effect The courts in modern Common Law systems are arranged in a hierarchy with an ultimate court

of appeal (such as the US Supreme Court or the Australian High Court) Courts are said to be lsquoboundrsquo by their own decisions (the lsquohorizontalrsquo effect of precedent) although they are usually entitled to overrule them

Courts lower in the judicial hierarchy are strictly bound by the decisions of higher courts since they cannot overrule them (lsquoverticalrsquo effect) Finally courts are not bound by the decisions of lower courts and are free to overrule them The operation of precedent is most clearly exhibited in its vertical effect on lower courts Where a court is dealing with precedents it is entitled to overrule a more relaxed approach seems to prevail to the interpretation and analysis of what was decided (see Eisenbery 51ndash6) Indeed the sense in which they are lsquolegally boundrsquo is not

entirely clear A court is said to be bound by its own decisions unless it overrules them This is thought to be explained by the idea that there are only a very limited number of grounds on which they can properly exercise the power to overrule On the other hand it is not clear that this cannot be captured by saying that courts work with a presumption against overruling their own decisions ie that they will only do so if the decision is clearly wrong and taking into account any reliance that people have placed in the decision the effects of other legal and social changes since the decision was made and the unwelcome institutional consequences of overruling (eg in encouraging appeals and undermining the stability of the law) When is it helpful then (if ever) to characterise courts as lsquolegally boundrsquo by their own decisions

benspRules What is a legal lsquorulersquo Although the idea that precedents (as well as statutes) create rules is a staple of legal and philosophical discussion the nature of these lsquorulesrsquo is rarely given the attention it requires Two sustained analyses have been developed in the last thirty years by legal philosophers (Raz Practical Reason and Norms Schauer Playing by the Rules) but their significance for the common law is unclear This is compounded by the fact that the rule view of precedent is rarely defended against the criticisms outlined above

censpFormal constraints The view of precedents as rules is often driven by the idea that there must be strong formal constraints on common law adjudication (see Alexander

lsquoConstrained by Precedentrsquo) Once the content of the rule is determined a court that wishes to depart from it carries a heavy onus in justifying this The truth however seems to be that the formal constraints on distinguishing (and overruling for that

matter) are very weak (see eg Eisenberg 61ndash2) The degree of legal determinacy that precedent provides seems to rely on features other than its formal constraints but little work has been done on exploring why this is the case

2nc at pdcpCanrsquot perm ndash distinguishing is separate from overrulingLAMOND 14 (Grant Lamond is a University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law Balliol College Grant Lamond Precedent and Analogy in Legal Reasoning The Stanford Encyclopedia of Philosophy (Spring 2014 Edition) Edward N Zalta (ed) First published Tue Jun 20 2006 URL = lthttpplatostanfordeduarchivesspr2014entrieslegal-reas-precgt)RK

Two ways in which distinguishing can be made less idiosyncratic are these (a) to argue that the later court is restricted to making a modification which the earlier court would have made if confronted with the current facts (cf Raz 1979 187ndash8) ie that distinguishing is a form of reinterpretation of the original ratio or (b) to argue that there is a presumption against distinguishing

(Schauer 1989 469ndash71 1991 174ndash87) Each of these approaches echo forms of legal reasoning found in statutory construction The first in asking what the earlier court would have done assimilates the task of distinguishing to that of determining the law-makers intent behind their ruling This is parallel to the practice of interpreting statutes in terms of legislative intent The alternative approach of there being a presumption against distinguishing parallels the creation of exceptions to statutory rules[8]

The problem with these two suggestions is that the practice of distinguishing does not conform to either of these constraints while courts do consider the earlier decision in order to see if the ratio can be reinterpreted they also introduce distinctions without recourse to the earlier courts views and they do not typically approach the task of distinguishing as if there is a presumption against it As a matter of

legal practice then there are no legal restrictions of this kind on the later court Distinguishing then does not seem to fit easily with the understanding of rationes as creating binding legal rules (See also Perry 1987 237ndash9 on distinguishing)

censpFormal constraints The view of precedents as rules is often driven by the idea that there must be strong formal constraints on common law adjudication (see Alexander

lsquoConstrained by Precedentrsquo) Once the content of the rule is determined a court that wishes to depart from it carries a heavy onus in justifying this The truth however seems to be that the formal constraints on distinguishing (and overruling for that

matter) are very weak (see eg Eisenberg 61ndash2) The degree of legal determinacy that precedent provides seems to rely on features other than its formal constraints but little work has been done on exploring why this is the case

2nc at pdcpCanrsquot perm ndash distinguishing is separate from overrulingLAMOND 14 (Grant Lamond is a University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law Balliol College Grant Lamond Precedent and Analogy in Legal Reasoning The Stanford Encyclopedia of Philosophy (Spring 2014 Edition) Edward N Zalta (ed) First published Tue Jun 20 2006 URL = lthttpplatostanfordeduarchivesspr2014entrieslegal-reas-precgt)RK

Two ways in which distinguishing can be made less idiosyncratic are these (a) to argue that the later court is restricted to making a modification which the earlier court would have made if confronted with the current facts (cf Raz 1979 187ndash8) ie that distinguishing is a form of reinterpretation of the original ratio or (b) to argue that there is a presumption against distinguishing

(Schauer 1989 469ndash71 1991 174ndash87) Each of these approaches echo forms of legal reasoning found in statutory construction The first in asking what the earlier court would have done assimilates the task of distinguishing to that of determining the law-makers intent behind their ruling This is parallel to the practice of interpreting statutes in terms of legislative intent The alternative approach of there being a presumption against distinguishing parallels the creation of exceptions to statutory rules[8]

The problem with these two suggestions is that the practice of distinguishing does not conform to either of these constraints while courts do consider the earlier decision in order to see if the ratio can be reinterpreted they also introduce distinctions without recourse to the earlier courts views and they do not typically approach the task of distinguishing as if there is a presumption against it As a matter of

legal practice then there are no legal restrictions of this kind on the later court Distinguishing then does not seem to fit easily with the understanding of rationes as creating binding legal rules (See also Perry 1987 237ndash9 on distinguishing)

2nc at pdcpCanrsquot perm ndash distinguishing is separate from overrulingLAMOND 14 (Grant Lamond is a University Lecturer in Legal Philosophy and the Felix Frankfurter Fellow in Law Balliol College Grant Lamond Precedent and Analogy in Legal Reasoning The Stanford Encyclopedia of Philosophy (Spring 2014 Edition) Edward N Zalta (ed) First published Tue Jun 20 2006 URL = lthttpplatostanfordeduarchivesspr2014entrieslegal-reas-precgt)RK

Two ways in which distinguishing can be made less idiosyncratic are these (a) to argue that the later court is restricted to making a modification which the earlier court would have made if confronted with the current facts (cf Raz 1979 187ndash8) ie that distinguishing is a form of reinterpretation of the original ratio or (b) to argue that there is a presumption against distinguishing

(Schauer 1989 469ndash71 1991 174ndash87) Each of these approaches echo forms of legal reasoning found in statutory construction The first in asking what the earlier court would have done assimilates the task of distinguishing to that of determining the law-makers intent behind their ruling This is parallel to the practice of interpreting statutes in terms of legislative intent The alternative approach of there being a presumption against distinguishing parallels the creation of exceptions to statutory rules[8]

The problem with these two suggestions is that the practice of distinguishing does not conform to either of these constraints while courts do consider the earlier decision in order to see if the ratio can be reinterpreted they also introduce distinctions without recourse to the earlier courts views and they do not typically approach the task of distinguishing as if there is a presumption against it As a matter of

legal practice then there are no legal restrictions of this kind on the later court Distinguishing then does not seem to fit easily with the understanding of rationes as creating binding legal rules (See also Perry 1987 237ndash9 on distinguishing)

Affirmative

2ac precedent key Precedent is useful Waldorn 12 ndash Jeremy Waldron New York University University Professor and Professor of Law New York University and Chichele Professor of Social and Political Theory Oxford University 2012 ldquoStare Decisis and the Rule of Law A Layered Approach Michigan law Review vol 111 issue 1 httprepositorylawumicheducgiviewcontentcgiarticle=1095ampcontext=mlr KKCJs = judges justice

One may ask Well why bother formally overturning Rp Why not just distinguish it for all future cases There is enough flexibility not to say indeterminacy in the system of precedent as it is to allow future judges to get out from under misconceived precedents But frankly acknowledging the possibility of formally overturning a precedent has its advantages The British House of Lords drew attention to these advantages when it issued its famous Practice Statement of 1966

Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules

Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law They propose therefore to modify their present practice and while treating formal decisions of this House as normally binding to depart from a previous decision when it appears right to do so79

The official acknowledgment that precedents could be overturned made it possible for lawyers in Britain to advance explicit arguments that a precedent should be overturned and it allowed such arguments to be candidly considered by the court so that it could give public reasons for and against a change No doubt judges continued the practice of sometimes distinguishing cases disingenuously or in bad faith But there was a considerable advantage in terms of transparency with the new approach

In some cases it may be a matter of judgment as to whether full-scale overturning is appropriate Rp may need tweaking or amending rather than repudiation Something akin to distinguishing may be proper in a case of this kind80 Analogies to legislation are not always appropriate but in that domain one sees a variety of possible measures taken with regard to statutes that have come to seem unsatisfactory Some like enacting a new statute to supersede an old are analogous to full-scale overturning Others like smallscale amendment are more like this latter kind of distinguishing

So far as full-scale overturning is concerned the 1966 Practice Statement is quite clear about the need for caution The House of Lords decisions are to be treated as normally binding and the power to overturn is not to be used lightly and it is to be used more cautiously in some areas than others 81 This again is what the rule of law requires the laws should be relatively stable If they are changed too often people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learnt what it was 82 The need for constancy is perhaps particularly important in regard to judge-made law So far as legislation is concerned the processes are cumbersome and hard to mobilize (though this is more true in the United States than in parliamentary systems) But judicial decisions are made every day each one with the potential to change the law In the case of legislation one usually has notice that change is in the offing This is apparent from the beginning of a bills passage until the end But in judicial decisionmaking one might not know that the law has changed until one scrutinizes a myriad of opinions

Many of the rule-of-law arguments for constancy involve the values of certainty predictability and respecting established expectations that I mentioned in Part II But it is not just about calculability It is about people having time to take a norm on board and internalize it as a basis for their decisionmaking Aristotle argued that the habit of lightly changing the laws is an evil and based this claim on the proposition that the law has no power to command obedience except that of habit which can only be given by time83 The vastly increased coercive apparatus of the modern state means that this is less the case now than it was in Athens 2300 years ago If we

2ac precedent key Precedent is useful Waldorn 12 ndash Jeremy Waldron New York University University Professor and Professor of Law New York University and Chichele Professor of Social and Political Theory Oxford University 2012 ldquoStare Decisis and the Rule of Law A Layered Approach Michigan law Review vol 111 issue 1 httprepositorylawumicheducgiviewcontentcgiarticle=1095ampcontext=mlr KKCJs = judges justice

One may ask Well why bother formally overturning Rp Why not just distinguish it for all future cases There is enough flexibility not to say indeterminacy in the system of precedent as it is to allow future judges to get out from under misconceived precedents But frankly acknowledging the possibility of formally overturning a precedent has its advantages The British House of Lords drew attention to these advantages when it issued its famous Practice Statement of 1966

Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs as well as a basis for orderly development of legal rules

Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law They propose therefore to modify their present practice and while treating formal decisions of this House as normally binding to depart from a previous decision when it appears right to do so79

The official acknowledgment that precedents could be overturned made it possible for lawyers in Britain to advance explicit arguments that a precedent should be overturned and it allowed such arguments to be candidly considered by the court so that it could give public reasons for and against a change No doubt judges continued the practice of sometimes distinguishing cases disingenuously or in bad faith But there was a considerable advantage in terms of transparency with the new approach

In some cases it may be a matter of judgment as to whether full-scale overturning is appropriate Rp may need tweaking or amending rather than repudiation Something akin to distinguishing may be proper in a case of this kind80 Analogies to legislation are not always appropriate but in that domain one sees a variety of possible measures taken with regard to statutes that have come to seem unsatisfactory Some like enacting a new statute to supersede an old are analogous to full-scale overturning Others like smallscale amendment are more like this latter kind of distinguishing

So far as full-scale overturning is concerned the 1966 Practice Statement is quite clear about the need for caution The House of Lords decisions are to be treated as normally binding and the power to overturn is not to be used lightly and it is to be used more cautiously in some areas than others 81 This again is what the rule of law requires the laws should be relatively stable If they are changed too often people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learnt what it was 82 The need for constancy is perhaps particularly important in regard to judge-made law So far as legislation is concerned the processes are cumbersome and hard to mobilize (though this is more true in the United States than in parliamentary systems) But judicial decisions are made every day each one with the potential to change the law In the case of legislation one usually has notice that change is in the offing This is apparent from the beginning of a bills passage until the end But in judicial decisionmaking one might not know that the law has changed until one scrutinizes a myriad of opinions

Many of the rule-of-law arguments for constancy involve the values of certainty predictability and respecting established expectations that I mentioned in Part II But it is not just about calculability It is about people having time to take a norm on board and internalize it as a basis for their decisionmaking Aristotle argued that the habit of lightly changing the laws is an evil and based this claim on the proposition that the law has no power to command obedience except that of habit which can only be given by time83 The vastly increased coercive apparatus of the modern state means that this is less the case now than it was in Athens 2300 years ago If we

want to we can enforce laws that the citizenry have not yet gotten used to But in doing so we show contempt for the dignity of ordinary agency and the ability of people to be guided by the law to internalize it and to selfapply it to their conduct Upholding dignity in this sense is one of the things that the rule of law requires84

I have emphasized that refraining from overruling is not the same as the basic respect for the principle of a previous decision which is the essence of following a precedent85 It is an additional layer with its own distinctive rule-of-law rationale It is possible however for the two layers to collapse into one another A court whose members overturn a precedent almost as soon as it is recognized not only fail in the rule-of-law discipline of constancy but come close to making it impossible for there to be anything to be constant to The subsequent judge Js may say that he respects the idea of precedent and that he is just trying to get the right principle established But if every subsequent judge responds as he does--overturning the principle that a precedent judge has acted on and purporting to replace it even before it has gotten established-then there will be no precedents whatsoever And the rule-of-law defect here will switch from inconstancy to a failure to establish and act on general principles at all However the possibility of this sort of collapse should not lead us to ignore the distinction between the two layers and the distinct ways in which rule-of-law principles are engaged

Consistency as a justification for precedents doesnrsquot apply when the precedent is wrong ndash if so the precedent should be overruledLamond rsquo07 (Grant Lamond regular faculty Oxford University ldquoPrecedentrdquo July 18 2007 httponlinelibrarywileycomdoi101111j1747-9991200700092xfull)RK

The most abstract justification provided for precedent is that it is said to serve equality by treating like cases alike The law should be applied impartially to all and so if one party has been treated in a particular way in one case all similarly placed parties should be treated in the same way But there are a range of

difficulties with this rationale A precedent makes new law by authoritatively settling some legal issue When it did so the court must either (a) have made the correct judgement of the merits in the light of the existing law (b) have made an incorrect judgement or (c) have made a choice between two equally eligible claims In all three cases later courts are required to repeat the decision But it is only in the case of (c) that equality seems to come into the equation If the decision was correct (a) then of course that is what the court should do now because it is the correct view of the merits of the case But if the decision was wrong (b) then why should the later court be required to repeat this mistake It has to be remembered that this is an argument of pure abstract

principle having nothing to do with the limitations of decision-makers nor the expectations or reliance of parties If some party has been treated incorrectly in the past (eg lost a case they should have won been acquitted when they should have been convicted) why not just correct the error in later cases ndash as indeed a court with the power to overrule precedents will do Equality then may help explain why precedents should bind if the

merits of the dispute are indeterminate but it does not support the repetition of mistaken decisions

Precedents key ndash multiple reasonsLamond rsquo07 (Grant Lamond regular faculty Oxford University ldquoPrecedentrdquo July 18 2007 httponlinelibrarywileycomdoi101111j1747-9991200700092xfull)RK

The other main philosophical issue surrounding the legal doctrine of precedent is the justification for the requirement that later courts follow earlier decisions A number of rationales for the doctrine have been put forward ranging from abstract principle to more pragmatic concerns with the workability of the legal system (on the justifications for precedent see Golding 98ndash100 Schauer lsquoPrecedentrsquo 595ndash602 Benditt 89ndash93 Lamond lsquoPrecedent and Analogyrsquo section 3) The major justifications and their problems will be considered in turn below

1enspequality

The most abstract justification provided for precedent is that it is said to serve equality by treating like cases alike The law should be applied impartially to all and so if one party has been treated in a particular way in one case all similarly placed parties should be treated in the same way But there are a range of difficulties with this rationale A precedent makes new law by authoritatively settling some legal issue When it did so the court must either (a) have made the correct judgement of the merits in the light of the existing law (b) have made an incorrect judgement or (c) have made a choice between two equally eligible claims In all three cases later courts are required to repeat the decision But it is only in the case of (c) that equality seems to come into the equation If the decision was correct (a) then of course that is what the court should do now because it is the correct view of the merits of the case But if the decision was wrong (b) then why should the later court be required to repeat this mistake It has to be remembered that this is an argument of pure abstract principle having nothing to do with the limitations of decision-makers nor the expectations or reliance of parties If some party has been treated incorrectly in the past (eg lost a case they should have won been acquitted when they should have been convicted) why not just correct the error in later cases ndash as indeed a court with the power to overrule precedents will do Equality then may help explain why precedents should bind if the merits of the dispute are indeterminate but it does not support the repetition of mistaken decisions

2enspexpectations and reliance

Alternatively it may be argued that parties rely upon judicial decisions and so it would defeat their expectations if later courts did not follow them But again this is problematic Of course if there is an established practice of precedent parties will rely on past decisions and be reasonable in doing so But this only shows that there are reasons for respecting such expectations while there is such a practice not an argument for maintaining the practice itself If there are no good independent reasons for a practice of precedent then it should be abandoned and whatever expectations were formed prior to that change should simply be factored in when reaching a decision on the merits

3ensppredictabilityThe law like any set of rules is inevitably lsquoincompletersquondash there are some issues that have never been considered by the courts (is the woman who donates eggs to another for in vitrofertilisation the lsquomotherrsquo of the child) and others that are only covered by

vague standards (does failing to correct anotherrsquos self-induced misconception constitute lsquofraudrsquo) Court decisions help to render the law more specific and concrete and thus more predictable When the law is predictable it is easier for people to make plans and ensure that they conform to it This is an argument for following precedent though not an argument for such a strong doctrine as that of strictly binding precedent Predictability is valuable but only if other things are equal To take two examples there may be cases where although the decision is not ideal this is not as important as having an announced standard (eg where the division of property ought to be 4060 but is made 5050) or it is not worth the costs of accurately determining the correct outcome in each case But in other cases (such as whether some conduct merits a criminal conviction) it may be more important that the correct decision is sought than that some announced standard be followed

4enspconsistency between decision-makers

Legal systems face a problem that other multi-member institutions usually lack Many bodies such as legislatures make decisions and there are devices for achieving an outcome that can be attributed to the institution as a whole despite

internal disagreement In a legal system by contrast there are many judges each making decisions on their own The judges vary in their substantive views so if the outcome of cases is left to the assessment of the merits of the dispute the outcome may turn on who adjudicates the dispute Precedent is one means by which the variability of outcomes can be reduced Later courts are required to follow earlier decisions thereby achieving a greater degree of consistency over timeThis argument should not be overstated however The formal constraints of precedent are not very strong so unless there is already a fair level of substantive agreement among judges a doctrine of precedent would leave considerable scope for variation before different courts

5enspexpertise

One obvious reason for following past decisions is if they are more likely to be correct than a decision made now This may apply to precedents binding on lower courts as there are a number of reasons for thinking that appellate courts are better placed than trial judges to make correct rulings on points of law Trial judges have the difficult task of working on their own to hear evidence deal with myriad points of procedure and substance and reduce everything to an orderly analysis of facts and law Appellate courts have the advantage of dealing with particular questions of law raised on appeal using the trial judgment as the basis for discussion In addition such courts sit in benches where they can share their expertise and are supposed to have

judges of higher calibre than most trial judges All in all they are able to focus their greater expertise on solving well-formulated questions of law

• Congress CP
• • Counterplan
  • • 1nc ndash congress cp
    • • Text The United States Congress should
      • Congress can and should overrule ndash avoids the courts disads
      • • 2nc solvency ndash education
        • • Congress has a duty to protect education
          • Congress has a duty
          • Congressrsquo role in education is expanding
          • • 2nc solvency ndash 14th amendment
            • • Congress must rule ndash 14th Amendment proves
              • • 2nc solvency ndash citizenship
                • • Congress can rule under the Citizenship Clause
                  • • 2nc solvency ndash constitution
                    • • Congress solves best ndash has constitutional significance
                      • • 2nc solvency ndash international law
                        • • International law ndash possible link into convention on the rights of the child
                          • • 2nc solvency ndash overrule
                            • • Congress can overrule
                              • • 2nc solvency ndash generic
                                • • Congress handles many issues better than courts
                                  • Policymaking should be left to Congress ndash Roe v Wade proves
                                  • • 2nc solvency ndash precedent
                                    • • Congress sets statutory stare decisis
                                      • The Supreme Court gives heightened weight to statutory precedent ndash baseball proves
                                      • Deviation from statutory precedent violates the constitution
                                      • • 2nc solvency ndash rights
                                        • • Congress has the authority to declare fundamental rights
                                          • The Supreme Court cannot decide fundamental rights
                                          • • 2nc at no resources
                                            • • Congress has a plethora of resources for constitutional analysis
                                              • • Net Benefit
                                                • • 1nc nb ndash legitimacy
                                                  • • Congress avoids the legitimacy disad ndash plan and perm crush the rule of law
                                                    • • 2nc nb ndash legitimacy
                                                      • • Court predictability key to rule of law
                                                        • Consensual norms are key to institutional legitimacy
                                                        • • Affirmative
                                                          • • Generic Answers
                                                            • • The Supreme Court has ultimate deciding power
                                                              • Legislative action cannot be used to correct Constitutional cases
                                                              • Congress canrsquot solve- no qualified representatives
                                                              • • Cong Canrsquot Solve
                                                                • • Congress canrsquot solve- this card probably applies to your aff too though
                                                                  • • AT Rational Basis
                                                                    • • All cases are fair regardless of the review standard
                                                                      • • AT Liu
                                                                        • • Liursquos reading of the Citizenship Clause is false
                                                                          • • Distinguish Counterplan
                                                                            • • Counterplan
                                                                              • • 1nc distinguish
                                                                                • • Replace overrule with distinguish
                                                                                  • The counterplan solves the case and avoids the court clog amp stare decisis disads
                                                                                  • • 2nc solvency
                                                                                    • • Distinguishing is an alternative to overruling
                                                                                      • Distinguishing solves and is legally possible
                                                                                      • Simply distinguishing a case is less complex and easier than overruling
                                                                                      • • 2nc at pdcp
                                                                                        • • Canrsquot perm ndash distinguishing is separate from overruling
                                                                                          • • Affirmative
                                                                                            • • 2ac precedent key
                                                                                              • • Precedent is useful
                                                                                                • Consistency as a justification for precedents doesnrsquot apply when the precedent is wrong ndash if so the precedent should be overruled
                                                                                                • Precedents key ndash multiple reasons

Precedents key ndash multiple reasonsLamond rsquo07 (Grant Lamond regular faculty Oxford University ldquoPrecedentrdquo July 18 2007 httponlinelibrarywileycomdoi101111j1747-9991200700092xfull)RK

The other main philosophical issue surrounding the legal doctrine of precedent is the justification for the requirement that later courts follow earlier decisions A number of rationales for the doctrine have been put forward ranging from abstract principle to more pragmatic concerns with the workability of the legal system (on the justifications for precedent see Golding 98ndash100 Schauer lsquoPrecedentrsquo 595ndash602 Benditt 89ndash93 Lamond lsquoPrecedent and Analogyrsquo section 3) The major justifications and their problems will be considered in turn below

1enspequality

The most abstract justification provided for precedent is that it is said to serve equality by treating like cases alike The law should be applied impartially to all and so if one party has been treated in a particular way in one case all similarly placed parties should be treated in the same way But there are a range of difficulties with this rationale A precedent makes new law by authoritatively settling some legal issue When it did so the court must either (a) have made the correct judgement of the merits in the light of the existing law (b) have made an incorrect judgement or (c) have made a choice between two equally eligible claims In all three cases later courts are required to repeat the decision But it is only in the case of (c) that equality seems to come into the equation If the decision was correct (a) then of course that is what the court should do now because it is the correct view of the merits of the case But if the decision was wrong (b) then why should the later court be required to repeat this mistake It has to be remembered that this is an argument of pure abstract principle having nothing to do with the limitations of decision-makers nor the expectations or reliance of parties If some party has been treated incorrectly in the past (eg lost a case they should have won been acquitted when they should have been convicted) why not just correct the error in later cases ndash as indeed a court with the power to overrule precedents will do Equality then may help explain why precedents should bind if the merits of the dispute are indeterminate but it does not support the repetition of mistaken decisions

2enspexpectations and reliance

Alternatively it may be argued that parties rely upon judicial decisions and so it would defeat their expectations if later courts did not follow them But again this is problematic Of course if there is an established practice of precedent parties will rely on past decisions and be reasonable in doing so But this only shows that there are reasons for respecting such expectations while there is such a practice not an argument for maintaining the practice itself If there are no good independent reasons for a practice of precedent then it should be abandoned and whatever expectations were formed prior to that change should simply be factored in when reaching a decision on the merits

3ensppredictabilityThe law like any set of rules is inevitably lsquoincompletersquondash there are some issues that have never been considered by the courts (is the woman who donates eggs to another for in vitrofertilisation the lsquomotherrsquo of the child) and others that are only covered by

vague standards (does failing to correct anotherrsquos self-induced misconception constitute lsquofraudrsquo) Court decisions help to render the law more specific and concrete and thus more predictable When the law is predictable it is easier for people to make plans and ensure that they conform to it This is an argument for following precedent though not an argument for such a strong doctrine as that of strictly binding precedent Predictability is valuable but only if other things are equal To take two examples there may be cases where although the decision is not ideal this is not as important as having an announced standard (eg where the division of property ought to be 4060 but is made 5050) or it is not worth the costs of accurately determining the correct outcome in each case But in other cases (such as whether some conduct merits a criminal conviction) it may be more important that the correct decision is sought than that some announced standard be followed

4enspconsistency between decision-makers

Legal systems face a problem that other multi-member institutions usually lack Many bodies such as legislatures make decisions and there are devices for achieving an outcome that can be attributed to the institution as a whole despite

internal disagreement In a legal system by contrast there are many judges each making decisions on their own The judges vary in their substantive views so if the outcome of cases is left to the assessment of the merits of the dispute the outcome may turn on who adjudicates the dispute Precedent is one means by which the variability of outcomes can be reduced Later courts are required to follow earlier decisions thereby achieving a greater degree of consistency over timeThis argument should not be overstated however The formal constraints of precedent are not very strong so unless there is already a fair level of substantive agreement among judges a doctrine of precedent would leave considerable scope for variation before different courts

5enspexpertise

One obvious reason for following past decisions is if they are more likely to be correct than a decision made now This may apply to precedents binding on lower courts as there are a number of reasons for thinking that appellate courts are better placed than trial judges to make correct rulings on points of law Trial judges have the difficult task of working on their own to hear evidence deal with myriad points of procedure and substance and reduce everything to an orderly analysis of facts and law Appellate courts have the advantage of dealing with particular questions of law raised on appeal using the trial judgment as the basis for discussion In addition such courts sit in benches where they can share their expertise and are supposed to have

judges of higher calibre than most trial judges All in all they are able to focus their greater expertise on solving well-formulated questions of law

• Congress CP
• • Counterplan
  • • 1nc ndash congress cp
    • • Text The United States Congress should
      • Congress can and should overrule ndash avoids the courts disads
      • • 2nc solvency ndash education
        • • Congress has a duty to protect education
          • Congress has a duty
          • Congressrsquo role in education is expanding
          • • 2nc solvency ndash 14th amendment
            • • Congress must rule ndash 14th Amendment proves
              • • 2nc solvency ndash citizenship
                • • Congress can rule under the Citizenship Clause
                  • • 2nc solvency ndash constitution
                    • • Congress solves best ndash has constitutional significance
                      • • 2nc solvency ndash international law
                        • • International law ndash possible link into convention on the rights of the child
                          • • 2nc solvency ndash overrule
                            • • Congress can overrule
                              • • 2nc solvency ndash generic
                                • • Congress handles many issues better than courts
                                  • Policymaking should be left to Congress ndash Roe v Wade proves
                                  • • 2nc solvency ndash precedent
                                    • • Congress sets statutory stare decisis
                                      • The Supreme Court gives heightened weight to statutory precedent ndash baseball proves
                                      • Deviation from statutory precedent violates the constitution
                                      • • 2nc solvency ndash rights
                                        • • Congress has the authority to declare fundamental rights
                                          • The Supreme Court cannot decide fundamental rights
                                          • • 2nc at no resources
                                            • • Congress has a plethora of resources for constitutional analysis
                                              • • Net Benefit
                                                • • 1nc nb ndash legitimacy
                                                  • • Congress avoids the legitimacy disad ndash plan and perm crush the rule of law
                                                    • • 2nc nb ndash legitimacy
                                                      • • Court predictability key to rule of law
                                                        • Consensual norms are key to institutional legitimacy
                                                        • • Affirmative
                                                          • • Generic Answers
                                                            • • The Supreme Court has ultimate deciding power
                                                              • Legislative action cannot be used to correct Constitutional cases
                                                              • Congress canrsquot solve- no qualified representatives
                                                              • • Cong Canrsquot Solve
                                                                • • Congress canrsquot solve- this card probably applies to your aff too though
                                                                  • • AT Rational Basis
                                                                    • • All cases are fair regardless of the review standard
                                                                      • • AT Liu
                                                                        • • Liursquos reading of the Citizenship Clause is false
                                                                          • • Distinguish Counterplan
                                                                            • • Counterplan
                                                                              • • 1nc distinguish
                                                                                • • Replace overrule with distinguish
                                                                                  • The counterplan solves the case and avoids the court clog amp stare decisis disads
                                                                                  • • 2nc solvency
                                                                                    • • Distinguishing is an alternative to overruling
                                                                                      • Distinguishing solves and is legally possible
                                                                                      • Simply distinguishing a case is less complex and easier than overruling
                                                                                      • • 2nc at pdcp
                                                                                        • • Canrsquot perm ndash distinguishing is separate from overruling
                                                                                          • • Affirmative
                                                                                            • • 2ac precedent key
                                                                                              • • Precedent is useful
                                                                                                • Consistency as a justification for precedents doesnrsquot apply when the precedent is wrong ndash if so the precedent should be overruled
                                                                                                • Precedents key ndash multiple reasons

internal disagreement In a legal system by contrast there are many judges each making decisions on their own The judges vary in their substantive views so if the outcome of cases is left to the assessment of the merits of the dispute the outcome may turn on who adjudicates the dispute Precedent is one means by which the variability of outcomes can be reduced Later courts are required to follow earlier decisions thereby achieving a greater degree of consistency over timeThis argument should not be overstated however The formal constraints of precedent are not very strong so unless there is already a fair level of substantive agreement among judges a doctrine of precedent would leave considerable scope for variation before different courts

5enspexpertise

One obvious reason for following past decisions is if they are more likely to be correct than a decision made now This may apply to precedents binding on lower courts as there are a number of reasons for thinking that appellate courts are better placed than trial judges to make correct rulings on points of law Trial judges have the difficult task of working on their own to hear evidence deal with myriad points of procedure and substance and reduce everything to an orderly analysis of facts and law Appellate courts have the advantage of dealing with particular questions of law raised on appeal using the trial judgment as the basis for discussion In addition such courts sit in benches where they can share their expertise and are supposed to have

judges of higher calibre than most trial judges All in all they are able to focus their greater expertise on solving well-formulated questions of law

• Congress CP
• • Counterplan
  • • 1nc ndash congress cp
    • • Text The United States Congress should
      • Congress can and should overrule ndash avoids the courts disads
      • • 2nc solvency ndash education
        • • Congress has a duty to protect education
          • Congress has a duty
          • Congressrsquo role in education is expanding
          • • 2nc solvency ndash 14th amendment
            • • Congress must rule ndash 14th Amendment proves
              • • 2nc solvency ndash citizenship
                • • Congress can rule under the Citizenship Clause
                  • • 2nc solvency ndash constitution
                    • • Congress solves best ndash has constitutional significance
                      • • 2nc solvency ndash international law
                        • • International law ndash possible link into convention on the rights of the child
                          • • 2nc solvency ndash overrule
                            • • Congress can overrule
                              • • 2nc solvency ndash generic
                                • • Congress handles many issues better than courts
                                  • Policymaking should be left to Congress ndash Roe v Wade proves
                                  • • 2nc solvency ndash precedent
                                    • • Congress sets statutory stare decisis
                                      • The Supreme Court gives heightened weight to statutory precedent ndash baseball proves
                                      • Deviation from statutory precedent violates the constitution
                                      • • 2nc solvency ndash rights
                                        • • Congress has the authority to declare fundamental rights
                                          • The Supreme Court cannot decide fundamental rights
                                          • • 2nc at no resources
                                            • • Congress has a plethora of resources for constitutional analysis
                                              • • Net Benefit
                                                • • 1nc nb ndash legitimacy
                                                  • • Congress avoids the legitimacy disad ndash plan and perm crush the rule of law
                                                    • • 2nc nb ndash legitimacy
                                                      • • Court predictability key to rule of law
                                                        • Consensual norms are key to institutional legitimacy
                                                        • • Affirmative
                                                          • • Generic Answers
                                                            • • The Supreme Court has ultimate deciding power
                                                              • Legislative action cannot be used to correct Constitutional cases
                                                              • Congress canrsquot solve- no qualified representatives
                                                              • • Cong Canrsquot Solve
                                                                • • Congress canrsquot solve- this card probably applies to your aff too though
                                                                  • • AT Rational Basis
                                                                    • • All cases are fair regardless of the review standard
                                                                      • • AT Liu
                                                                        • • Liursquos reading of the Citizenship Clause is false
                                                                          • • Distinguish Counterplan
                                                                            • • Counterplan
                                                                              • • 1nc distinguish
                                                                                • • Replace overrule with distinguish
                                                                                  • The counterplan solves the case and avoids the court clog amp stare decisis disads
                                                                                  • • 2nc solvency
                                                                                    • • Distinguishing is an alternative to overruling
                                                                                      • Distinguishing solves and is legally possible
                                                                                      • Simply distinguishing a case is less complex and easier than overruling
                                                                                      • • 2nc at pdcp
                                                                                        • • Canrsquot perm ndash distinguishing is separate from overruling
                                                                                          • • Affirmative
                                                                                            • • 2ac precedent key
                                                                                              • • Precedent is useful
                                                                                                • Consistency as a justification for precedents doesnrsquot apply when the precedent is wrong ndash if so the precedent should be overruled
                                                                                                • Precedents key ndash multiple reasons